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Articles 1 (paragraph 1), 2 (paragraph 1), and 25, of the Convention. Trafficking in persons. In its previous comments, the Committee noted with interest the adoption of Act No. 2003-239 of 18 March 2003 which had inserted into the Penal Code provisions defining the trafficking of human beings as well as the penalties applicable (sections 225-4-1 to 225-4-8 of the Penal Code). It also noted the provisions criminalizing and punishing “conditions of work or accommodation incompatible with human dignity” and the interpretation by the criminal chamber of the “Cour de Cassation” of the concept of human dignity.

The Committee notes the information provided by the Government in December 2008 in its report on the application of the Abolition of Forced Labour Convention, 1957 (No. 105), on the measures taken to strengthen the legal instruments designed to combat modern slavery and in particular the trafficking of human beings. With regard to trafficking in persons, the Committee notes that Decree No. 2007-1352 of 13 September 2007, has introduced a series of provisions into the legislation designed to protect the victims of trafficking. Thus, where the police or “gendarmerie” believe that a foreigner who has been the victim of trafficking is likely to make a complaint against his attacker or give evidence in a criminal procedure, they inform the victim of his or her rights and of the possibility of taking advantage of a 30-day cooling-off period. Foreign victims who are in an irregular situation and who make a complaint against their  attacker are granted a temporary residence permit giving them the right to carry out an occupational activity, which is renewable throughout the duration of the criminal procedure. In the event of the final conviction of the person accused, the victim may be granted a long-term residence permit. The victim may also be given social and medical protection and, if necessary, police protection. The Government also indicates that a telephone helpline has been set up which gives victims the opportunity to be listened to, advised on their rights and referred on anonymously. Furthermore, investigators and magistrates are given extended powers of investigation in the context of investigations and legal proceedings initiated related to trafficking in persons. Finally, the Government provides statistics on the convictions handed down for trafficking.

The Committee notes all this information which shows the Government’s determination to strengthen its legislative measures to combat the complex phenomenon of trafficking in persons. It requests the Government to provide information on the implementation of the above legislation by indicating, in particular, whether awareness-raising activities have been carried out for the benefit of the investigation and prosecution services. With regard to the protection of victims, the Committee asks the Government to specify the number of victims who have benefited from a period of reflection, as well as a residence permit under sections R316-2, R316-3 and R316-5 of the Code on the entry and stay of foreigners and the right to asylum. Please also provide information on the measures taken to ensure that those responsible are prosecuted, whether on the initiative of the victims or on the initiative of the prosecution authorities, as well as on the difficulties encountered by the authorities in this regard. Finally, noting that the statistics provided by the Government on the number of trafficking offences punished in 2007 (19) do not specify the sentence handed down to the perpetrators, the Committee would be grateful if the Government would continue providing such information in its future reports, specifying the sentences handed down, so that it can ensure that the sentences handed down for the offence of trafficking of human beings are really adequate and strictly enforced, in accordance with Article 25 of the Convention.

Article 2, paragraph 2, subparagraph (c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee observed that prisoners may be required to work for private enterprises and in that case may be assigned to general service for jointly managed prison establishments, carrying out work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities for private enterprises hiring labour from the prison administration or in jointly managed establishments. Although, under Article 2(2)(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that where work is performed under conditions approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may be compatible with the Convention. In this regard, the Committee noted that the guiding principles of the legislation governing prison work in France met, on a number of essential points, the criteria set out by the Committee for work performed by a prisoner for a private entity to be regarded as approximating a free labour relationship and as such does not come under the prohibition set out in Article 2(2)(c). The Committee nonetheless wished to be provided with further information on certain of these criteria.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that the Code of Criminal Procedure had been amended so that each convict benefited from a sentence reduction credit calculated on the basis of the length of the sentence, which may nonetheless be withdrawn by the judge responsible for the execution of sentences in the event of bad conduct by the convict during detention (section 721(3)). The Committee requested the Government to indicate whether, in practice, a prisoner’s refusal to work could be taken into account in determining bad conduct by that prisoner. The Committee notes that, in its latest report, the Government indicates that the issue of a refusal to work, and its possible consequences, can only arise in two cases: the prisoner takes the decision to stop a paid activity in breach of the rules or established practice (for example, by not giving notice) or the prisoner refuses to take up a post offered after he has requested it. In both cases, the refusal to take up a post offered does not in itself constitute a disciplinary offence.

With regard to the issue of consent to work, the Committee notes that the new Prisons Act, adopted on 13 October 2009, places all convicted persons under the obligation to carry out an activity. Under section 27(1), all convicted persons are under the obligation to carry out at least one of the activities offered to them by the head of the establishment and the director of the Prison Probation and Reintegration Service given that these activities are designed to reintegrate the person concerned and are adapted according to their age, skills, handicap and personality. Among the activities which may be offered to prisoners, paragraph 2 mentions learning to read and write, arithmetic and the French language, where the prisoner has not mastered these skills. The Committee notes that, although work is not expressly mentioned among the activities which may be imposed on convicted persons, it emerges from the discussion of the bill in the Senate and the National Assembly that, for the legislator, work is among the activities which the convicted person may be obliged to carry out. The Committee requests the Government to clarify this point, specifying whether work may be offered in the context of the obligation to carry out an activity, insofar as the convicted person is obliged to carry out an activity. If applicable, please indicate the effect of this new provision on section D99(1) of the Code of Criminal Procedure which removed the obligation to work in prison by providing that “prisoners, irrespective of their penal category, may request that work be offered to them”.

(b) Conditions of work approximating those of a free labour relationship. Noting that, under section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing prisoners for normal conditions of free work, the Committee requested the Government to provide further information on the remuneration of prison labour and the existence of an employment contract where work is carried out for the benefit of private entities.

Remuneration. The Committee previously emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments were not covered by the exception provided for in Article 2(2)(c), and should therefore receive gross remuneration approximating the levels of remuneration applicable to the same activities performed outside prisons.

With regard to general service work, the Committee notes that the average remuneration level is set each year by the prison administration for all establishments, regardless of how they are managed.

With regard to the level of remuneration of prisoners carrying out productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee previously noted the existence of a minimum remuneration threshold (SMR) which, although not a guaranteed minimum remuneration for prisoners, was a tool used by the prison administration to control the remuneration applied by private groups. The Committee also noted that the average wages paid to prisoners when they performed productive activities for the benefit of private entities (labour hiring contracts and jointly managed establishments) were lower than those applied by the Industrial Board of Prison Establishments (RIEP). It requested the Government to provide information in this regard and to indicate whether it was envisaged that the SMR would be made binding.

The Committee notes that the Government indicates in its report that, under the labour hiring regime, the remuneration is set in relation to the index-linked guaranteed minimum wage (SMIC) according to the average level of production determined after a trial period, in accordance with the thresholds established by the circular of 20 November 1998 on labour hiring contracts and clauses. Where productive activities are delegated to private groups, the remuneration has to be in line with the SMR. The Government confirms that checks are carried out on a monthly basis for each workshop to verify whether the SMR has been reached by dividing the total wages by the number of hours worked. It therefore constitutes an average collective minimum level of remuneration but does not ensure a minimum remuneration for individual prisoners. The Government adds that the minimum hourly remuneration rate for productive activities was €3.90 on 1 January 2009 (which represents 44.21 per cent of the hourly SMIC, set at €8.82 on 1 July 2009). It emphasizes that the specific characteristics of production within a prison environment include lower productivity than in a free environment. The difference in productivity levels compared to the outside world therefore results in a remuneration level that is lower than it would be under free labour conditions.

The Committee notes the various methods of fixing the wages of prisoners engaged in productive activities. It requests the Government to provide statistics allowing a comparison of the minimum hourly rates and/or the average hourly rates applicable to productive activities in the RIEP workshops under the labour hiring regime, where the organization of the work is delegated to private groups and in the new jointly managed prison establishments.

The Committee also notes that, under section 32 of the new Prisons Act, which supplements section 717-3 of the Code of Criminal Procedure, the remuneration for work carried out by prisoners may not be below an hourly rate set by decree and indexed to the SMIC, though the rate may vary according to the regime under which prisoners are employed. The Committee requests the Government to indicate the measures taken to implement the principle set out in section 32 of the new Prisons Act and to specify the rates fixed for the various regimes under which prisoners are employed. The Committee hopes that the introduction into the national legislation of a minimum hourly rate of remuneration indexed to the SMIC will make it possible for the remuneration of prisoner workers to more closely approach that of free workers.

Employment contract. The Committee previously noted that, under sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. It hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employer, whether it is the enterprise for which the work is performed or an entity under the prison administration. In this regard, it noted that a circular had called on the establishments to make use of a “work engagement form” which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work and specifies matters such as hiring, the duration of the work, remuneration, trial periods, conditions relating to the suspension and termination of the labour relationship and requirements relating to regular attendance. The Committee requested the Government to provide further information on the nature and use of work engagement forms.

The Committee notes with interest that section 33 of the new Prisons Act provides that “the participation of prisoners in occupational activities organized in prison establishments shall give rise to the drawing up of an engagement document by the prison administration. This document, signed by the head of the establishment and the prisoner, shall set out the professional rights and obligations of the prisoner, as well as his conditions of work and remuneration”. The Committee hopes that the recognition of prisoner workers as rights bearers will enable their conditions of work to more closely approach those of free workers and requests the Government to provide a copy of a standard engagement document and to specify the information which has to be included in that document.

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The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

1. Article 2, paragraph 2(c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee noted that Act No. 87-432 of 22 June 1987 had amended the Code of Criminal Procedure by requiring prison labour to be voluntary. It noted that prisoners who work may be assigned to general service for prison establishments, work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities. In the context of productive activities, work is carried out: (a) in the workshops of the Prison Employment Service (SEP), through the Industrial Board of Prison Establishments (RIEP); (b) for private enterprises hiring labour from the prison administration; or (c) in jointly managed establishments. In this latter case, the organization of productive activities is one of the functions entrusted to private enterprises in the context of operating contracts for jointly managed establishments. This organization of prison labour means that prisoners may, in practice, perform work for the benefit of a private enterprise. Although, under the terms of Article 2, paragraph 2(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that when work is performed under conditions of employment approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may not raise problems in relation to the application of the Convention. In this respect, it noted in its previous comments that the guiding principles of the legislation governing prison work respond on a number of essential points to the criteria set forth by the Committee for work performed by a prisoner for a private enterprise to be assimilated to a free labour relationship, and accordingly does not come under the prohibitions set out in Article 2, paragraph 2(c), of the Convention. The Committee however wishes to draw the Government’s attention to and be provided with further information on certain of these criteria which make it possible to approximate a free labour relationship.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that, under the terms of sections 720(1) and 721(1) of the Code of Criminal Procedure, there is a link between whether or not a prisoner agrees to work and the prospects for sentence reduction. By virtue of section 721(1), a reduction of sentence can be granted to prisoners where they have given sufficient proof of good conduct, while section 720 provides that work and vocational training are taken into account in assessing a convict’s reintegration potential and good behaviour. It drew the Government’s attention to the fact that this link could have an impact on consent being given freely to perform work. The Government indicated in this regard, in its report received in 2004, that the judge responsible for the application of sentences assesses reintegration potential and good behaviour on the basis of many criteria other than mere participation in work, such as behaviour during detention, involvement in socio-educational activities, the degree of compensation of the victims, the seriousness with which prisoners prepare their projects for after their release, the existence of family relations, etc. Moreover, there are a number of establishments in which the availability of work cannot fully satisfy the demand, which would amount to discrimination in relation to sentence reduction.

The Committee notes this information. It observes that, following the adoption of Act No. 2004-204 of 9 March 2004, section 720 became section 717‑3 and the provisions of section 721(1) were amended. Henceforth, each convict benefits from a sentence reduction credit calculated on the basis of the length of the sentence. This sentence reduction credit may be withdrawn by the judge responsible for the application of sentences in the event of bad conduct by the convict during detention. It would therefore appear that the link existing in the legislation between the acceptance of work and the right to sentence reduction has been removed. However, the Committee would be grateful if the Government would indicate whether, in practice, refusal of work may be taken into account in determining bad conduct by a prisoner.

(b) Conditions of work approximating those of a free labour relationship. The Committee recalls that, in accordance with section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of work under free conditions. In this context, the Committee would be grateful if the Government would provide additional information on the following points relating to the remuneration of prison labour and the existence of an employment contract when work is performed for the benefit of private enterprises.

Remuneration

In its previous comments, the Committee emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments are not covered by the exception provided for in Article 2, paragraph 2(c), of the Convention, and should therefore receive gross remuneration approximating the levels of remuneration in the same activities performed outside prisons. The Committee notes the detailed information provided by the Government in its reports received in 2004 and 2006 concerning the adjustment of remuneration of prisoners engaged in general service work. According to this information, remuneration will be adjusted each year on the basis of changes in the minimum interoccupational growth wage (SMIC) and, between 2002–06, the average daily remuneration of prisoners assigned to general service work increased by around 20 per cent (20.3 per cent for category I, 18.5 per cent for category II and 19.2 per cent for category III). The Government adds that it remains appropriate to determine a minimum amount by category below which no remuneration could be paid.

With regard to general service work in jointly managed prison establishments, the Government indicates in its 2004 report that, since January 2002, the financing of the remuneration and social contributions of prisoners engaged in these activities is provided directly by the prison administration. The management of the budgetary credits allocated for general service work is undertaken in each establishment by the head of the administration. Similarly, the number of prisoners assigned to general service work and their distribution in the three remuneration categories, according to the scale established by the head of the prison administration, are determined by decision of the director of the establishment. The Committee notes from this information that the “general service” function is no longer delegated to a private operator in the context of a management contract. It requests the Government to indicate whether this is indeed the case and to continue providing information on any change which may occur in the distribution of functions in the context of contracts for the operation of jointly managed prison establishments, where such functions affect work by prisoners. In this connection, please provide a copy of a contract for the operation of jointly managed prison establishments. Furthermore, the Committee notes that the Act on the orientation and programming of justice (2003–07) envisages the construction of 13,200 places for prisoners, including 10,800 in new prisons with new forms of public-private partnership. The Committee requests the Government to provide information on the nature of the new prison establishments, with an indication of the role played by the private operator in the provision of work to prisoners.

With regard to the level of remuneration of prisoners performing productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee notes the information report prepared in 2002 by Senator Paul Loridant for the Commission on Finance, Budgetary Supervision and the Accounts of the Nation on the supervision of budgetary item No. 904-11 of the RIEP relating to its commercial activities. It notes that the average daily remuneration for productive activities is €24 when the work is provided by the RIEP, €19 when it is performed under labour hiring contracts and €16 in jointly managed prison establishments. According to this report, in jointly managed establishments, the operating contract contains a contractual indicator known as the SMAP (minimum wage for the prison administration) for the minimum hourly remuneration rate for prisoners for productive work. The SMAP varies between 41 and 44 per cent of the minimum hourly wage. The Committee notes that the increase of the SMAP to 50 per cent of the minimum wage is one of the measures proposed in the report.

The Committee notes, according to the Government’s last report, that the SMAP has been replaced by the minimum remuneration threshold (SMR). The Government indicates that the principle of remuneration which cannot be lower than the SMR, applicable in jointly managed establishments, has been extended to workshops under concession in publicly managed establishments. The SMR is a tool used by the administration to control the remuneration applied by private groups. However, it is not a right of prisoners who work and there is no guaranteed minimum remuneration. The Committee notes all this information. It observes that, in 2006, the SMR represents 44.7 per cent of the SMIC. Noting that, according to the 2002 Senate information report referred to above, the average wages paid to prisoners when they perform productive activities for the benefit of private entities (labour-hiring contracts and jointly managed establishments) are lower than those applied by the RIEP, the Committee requests the Government to continue providing detailed information on the average wages paid to prisoners engaged in productive activities (for the RIEP and for private entities). Please also indicate whether it is envisaged making the SMR binding.

Employment contract

The Committee notes that, under the terms of sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. In its previous comments, the Committee hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration. The Government indicated in its 2004 report that the Plan for the Improvement of Labour and Employment Conditions (PACTE 2) set three objectives, including bringing prison labour closer to the generally applicable legislation. The prison administration is committed to a process of bringing the conditions under which prison work is performed as close as possible to the conditions found in the outside world. A circular has called on the establishments to make use of a “work engagement form”, which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work. It specifies matters relating to hiring, the duration of work, remuneration, trial periods, conditions relating to suspension and termination, requirements relating to regularity, etc. The Government adds that the work engagement form is an essential element in an approach aimed at the reintegration of prisoners as it prepares them for the performance of work and offers them protection and rights in exchange for a professional commitment.

The Committee also notes that the information report to the Senate, referred to above, emphasizes the need to introduce the rule of law and contracts into the prison work relationship. It raises the principle of the employment contract, while recognizing that the performance of work under detention presents specificities which require adjustments in relation to the general rules governing the employment contract. The report advocates offering employers the options of, firstly, an employment contract covered by general legal rules, concluded directly between the employer and the prisoner, with certain adjustments or, secondly, a specific public law prison labour contract, concluded by the prison administration and the prisoner, with the placing of the prisoner at the disposal of the actual employer being covered by a labour-hiring contract approximating an employment contract. The Committee also notes the opinion issued by the Economic and Social Council in February 2006 on “the conditions of the social and vocational reintegration of prisoners in France” and the report of the Court of Accounts “Detention and reintegration: The management of prisons”, published in 2006. These two authorities emphasize the need to establish a legal framework adapted to work by prisoners which specifies their rights and duties, as well as the rules applicable to their remuneration. According to the report of the Court of Accounts “the absence of a contract of employment between detainees and the enterprises which have recourse to their labour illustrates the ambiguous situation of prisoners, to which the development of the ‘work engagement forms’, advocated by the administration, only constitutes a partial response, as the latter have no legal value and are not used systematically”. The Committee hopes that the Government will be able to provide information in this next report on the progress achieved in this respect. It requests it to provide a more detailed information on the nature and use of work engagement forms.

2. Exploitation of the work of others. The Committee notes the information provided by the Government on the application of sections 225-13 and 225-14 of the Penal Code respecting the offence of obtaining the provision of unpaid services from a vulnerable or dependent person, and the offence of subjecting a vulnerable or dependent person to conditions of work or accommodation incompatible with human dignity. The Committee notes that Act No. 2003-239 of 18 March 2003 has extended the elements deemed to constitute these offences. Accordingly, it is henceforth sufficient for the vulnerability or state of dependence to be apparent or known to the person committing the offence. The Act also provides that minors or persons who are victims of such situations upon their arrival on the national territory shall be considered to be vulnerable or dependent persons which, according to the Government, makes it easier to categorize these offences when they are committed against foreign nationals. Furthermore, the penalties applicable for these offences have been increased. The Committee requests the Government to continue providing information, including statistics, on the application in practice of sections 225-13 and 225-14 of the Penal Code, and particularly to provide copies of any relevant court rulings. In this connection, the Committee notes with interest the interpretation by the Court of Cassation of the concept of human dignity.

3. Trafficking in persons. The Committee notes with interest that Act No. 2003-239 has inserted into the Penal Code a section on the trafficking of human beings (sections 225-4-1 to 225-4-8). These provisions define the trafficking of human beings and make those responsible liable to a sentence of imprisonment of seven years and a fine of €150,000, which may be increased under certain circumstances. Persons committing this offence are also liable to the confiscation of all their assets (section 225-25). The Committee would be grateful if the Government would provide information on the effect given in practice to these new provisions of the Penal Code by providing copies of court decisions on this subject. It also requests the Government to provide information on the other measures that it has adopted to combat the trafficking of persons for sexual or labour exploitation. In particular, it would be grateful to be provided with information on the difficulties encountered by the public authorities in combating this phenomenon, the measures adopted to encourage victims to approach the authorities and to provide victims with protection.

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1. Article 2, paragraph 2(c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee noted that Act No. 87-432 of 22 June 1987 had amended the Code of Criminal Procedure by requiring prison labour to be voluntary. It noted that prisoners who work may be assigned to general service for prison establishments, work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities. In the context of productive activities, work is carried out: (a) in the workshops of the Prison Employment Service (SEP), through the Industrial Board of Prison Establishments (RIEP); (b) for private enterprises hiring labour from the prison administration; or (c) in jointly managed establishments. In this latter case, the organization of productive activities is one of the functions entrusted to private enterprises in the context of operating contracts for jointly managed establishments. This organization of prison labour means that prisoners may, in practice, perform work for the benefit of a private enterprise. Although, under the terms of Article 2, paragraph 2(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that when work is performed under conditions of employment approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may not raise problems in relation to the application of the Convention. In this respect, it noted in its previous comments that the guiding principles of the legislation governing prison work respond on a number of essential points to the criteria set forth by the Committee for work performed by a prisoner for a private enterprise to be assimilated to a free labour relationship, and accordingly does not come under the prohibitions set out in Article 2, paragraph 2(c), of the Convention. The Committee however wishes to draw the Government’s attention to and be provided with further information on certain of these criteria which make it possible to approximate a free labour relationship.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that, under the terms of sections 720(1) and 721(1) of the Code of Criminal Procedure, there is a link between whether or not a prisoner agrees to work and the prospects for sentence reduction. By virtue of section 721(1), a reduction of sentence can be granted to prisoners where they have given sufficient proof of good conduct, while section 720 provides that work and vocational training are taken into account in assessing a convict’s reintegration potential and good behaviour. It drew the Government’s attention to the fact that this link could have an impact on consent being given freely to perform work. The Government indicated in this regard, in its report received in 2004, that the judge responsible for the application of sentences assesses reintegration potential and good behaviour on the basis of many criteria other than mere participation in work, such as behaviour during detention, involvement in socio-educational activities, the degree of compensation of the victims, the seriousness with which prisoners prepare their projects for after their release, the existence of family relations, etc. Moreover, there are a number of establishments in which the availability of work cannot fully satisfy the demand, which would amount to discrimination in relation to sentence reduction.

The Committee notes this information. It observes that, following the adoption of Act No. 2004-204 of 9 March 2004, section 720 became section 717‑3 and the provisions of section 721(1) were amended. Henceforth, each convict benefits from a sentence reduction credit calculated on the basis of the length of the sentence. This sentence reduction credit may be withdrawn by the judge responsible for the application of sentences in the event of bad conduct by the convict during detention. It would therefore appear that the link existing in the legislation between the acceptance of work and the right to sentence reduction has been removed. However, the Committee would be grateful if the Government would indicate whether, in practice, refusal of work may be taken into account in determining bad conduct by a prisoner.

(b) Conditions of work approximating those of a free labour relationship. The Committee recalls that, in accordance with section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of work under free conditions. In this context, the Committee would be grateful if the Government would provide additional information on the following points relating to the remuneration of prison labour and the existence of an employment contract when work is performed for the benefit of private enterprises.

Remuneration

In its previous comments, the Committee emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments are not covered by the exception provided for in Article 2, paragraph 2(c), of the Convention, and should therefore receive gross remuneration approximating the levels of remuneration in the same activities performed outside prisons. The Committee notes the detailed information provided by the Government in its reports received in 2004 and 2006 concerning the adjustment of remuneration of prisoners engaged in general service work. According to this information, remuneration will be adjusted each year on the basis of changes in the minimum interoccupational growth wage (SMIC) and, between 2002-06, the average daily remuneration of prisoners assigned to general service work increased by around 20 per cent (20.3 per cent for category I, 18.5 per cent for category II and 19.2 per cent for category III). The Government adds that it remains appropriate to determine a minimum amount by category below which no remuneration could be paid.

With regard to general service work in jointly managed prison establishments, the Government indicates in its 2004 report that, since January 2002, the financing of the remuneration and social contributions of prisoners engaged in these activities is provided directly by the prison administration. The management of the budgetary credits allocated for general service work is undertaken in each establishment by the head of the administration. Similarly, the number of prisoners assigned to general service work and their distribution in the three remuneration categories, according to the scale established by the head of the prison administration, are determined by decision of the director of the establishment. The Committee notes from this information that the “general service” function is no longer delegated to a private operator in the context of a management contract. It requests the Government to indicate whether this is indeed the case and to continue providing information on any change which may occur in the distribution of functions in the context of contracts for the operation of jointly managed prison establishments, where such functions affect work by prisoners. In this connection, please provide a copy of a contract for the operation of jointly managed prison establishments. Furthermore, the Committee notes that the Act on the orientation and programming of justice (2003-07) envisages the construction of 13,200 places for prisoners, including 10,800 in new prisons with new forms of public-private partnership. The Committee requests the Government to provide information on the nature of the new prison establishments, with an indication of the role played by the private operator in the provision of work to prisoners.

With regard to the level of remuneration of prisoners performing productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee notes the information report prepared in 2002 by Senator Paul Loridant for the Commission on Finance, Budgetary Supervision and the Accounts of the Nation on the supervision of budgetary item No. 904-11 of the RIEP relating to its commercial activities. It notes that the average daily remuneration for productive activities is 24 euros when the work is provided by the RIEP, 19 euros when it is performed under labour hiring contracts and 16 euros in jointly managed prison establishments. According to this report, in jointly managed establishments, the operating contract contains a contractual indicator known as the SMAP (minimum wage for the prison administration) for the minimum hourly remuneration rate for prisoners for productive work. The SMAP varies between 41 and 44 per cent of the minimum hourly wage. The Committee notes that the increase of the SMAP to 50 per cent of the minimum wage is one of the measures proposed in the report.

The Committee notes, according to the Government’s last report, that the SMAP has been replaced by the minimum remuneration threshold (SMR). The Government indicates that the principle of remuneration which cannot be lower than the SMR, applicable in jointly managed establishments, has been extended to workshops under concession in publicly managed establishments. The SMR is a tool used by the administration to control the remuneration applied by private groups. However, it is not a right of prisoners who work and there is no guaranteed minimum remuneration. The Committee notes all this information. It observes that, in 2006, the SMR represents 44.7 per cent of the SMIC. Noting that, according to the 2002 Senate information report referred to above, the average wages paid to prisoners when they perform productive activities for the benefit of private entities (labour-hiring contracts and jointly managed establishments) are lower than those applied by the RIEP, the Committee requests the Government to continue providing detailed information on the average wages paid to prisoners engaged in productive activities (for the RIEP and for private entities). Please also indicate whether it is envisaged making the SMR binding.

Employment contract

The Committee notes that, under the terms of sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. In its previous comments, the Committee hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration. The Government indicated in its 2004 report that the Plan for the Improvement of Labour and Employment Conditions (PACTE 2) set three objectives, including bringing prison labour closer to the generally applicable legislation. The prison administration is committed to a process of bringing the conditions under which prison work is performed as close as possible to the conditions found in the outside world. A circular has called on the establishments to make use of a “work engagement form”, which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work. It specifies matters relating to hiring, the duration of work, remuneration, trial periods, conditions relating to suspension and termination, requirements relating to regularity, etc. The Government adds that the work engagement form is an essential element in an approach aimed at the reintegration of prisoners as it prepares them for the performance of work and offers them protection and rights in exchange for a professional commitment.

The Committee also notes that the information report to the Senate, referred to above, emphasizes the need to introduce the rule of law and contracts into the prison work relationship. It raises the principle of the employment contract, while recognizing that the performance of work under detention presents specificities which require adjustments in relation to the general rules governing the employment contract. The report advocates offering employers the options of, firstly, an employment contract covered by general legal rules, concluded directly between the employer and the prisoner, with certain adjustments or, secondly, a specific public law prison labour contract, concluded by the prison administration and the prisoner, with the placing of the prisoner at the disposal of the actual employer being covered by a labour-hiring contract approximating an employment contract. The Committee also notes the opinion issued by the Economic and Social Council in February 2006 on “the conditions of the social and vocational reintegration of prisoners in France” and the report of the Court of Accounts “Detention and reintegration: The management of prisons”, published in 2006. These two authorities emphasize the need to establish a legal framework adapted to work by prisoners which specifies their rights and duties, as well as the rules applicable to their remuneration. According to the report of the Court of Accounts “the absence of a contract of employment between detainees and the enterprises which have recourse to their labour illustrates the ambiguous situation of prisoners, to which the development of the ‘work engagement forms’, advocated by the administration, only constitutes a partial response, as the latter have no legal value and are not used systematically”. The Committee hopes that the Government will be able to provide information in this next report on the progress achieved in this respect. It requests it to provide a more detailed information on the nature and use of work engagement forms.

2. Exploitation of the work of others. The Committee notes the information provided by the Government on the application of sections 225-13 and 225-14 of the Penal Code respecting the offence of obtaining the provision of unpaid services from a vulnerable or dependent person, and the offence of subjecting a vulnerable or dependent person to conditions of work or accommodation incompatible with human dignity. The Committee notes that Act No. 2003-239 of 18 March 2003 has extended the elements deemed to constitute these offences. Accordingly, it is henceforth sufficient for the vulnerability or state of dependence to be apparent or known to the person committing the offence. The Act also provides that minors or persons who are victims of such situations upon their arrival on the national territory shall be considered to be vulnerable or dependent persons which, according to the Government, makes it easier to categorize these offences when they are committed against foreign nationals. Furthermore, the penalties applicable for these offences have been increased. The Committee requests the Government to continue providing information, including statistics, on the application in practice of sections 225-13 and 225-14 of the Penal Code, and particularly to provide copies of any relevant court rulings. In this connection, the Committee notes with interest the interpretation by the Court of Cassation of the concept of human dignity.

3. Trafficking in persons. The Committee notes with interest that Act No. 2003-239 has inserted into the Penal Code a section on the trafficking of human beings (sections 225-4-1 to 225-4-8). These provisions define the trafficking of human beings and make those responsible liable to a sentence of imprisonment of seven years and a fine of 150,000 euros, which may be increased under certain circumstances. Persons committing this offence are also liable to the confiscation of all their assets (section 225-25). The Committee would be grateful if the Government would provide information on the effect given in practice to these new provisions of the Penal Code by providing copies of court decisions on this subject. It also requests the Government to provide information on the other measures that it has adopted to combat the trafficking of persons for sexual or labour exploitation. In particular, it would be grateful to be provided with information on the difficulties encountered by the public authorities in combating this phenomenon, the measures adopted to encourage victims to approach the authorities and to provide victims with protection.

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The Committee notes that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. With reference to its observation on the application of the Convention in relation to prisoners working for private enterprises, the Committee draws the Government’s attention to the following points.

  1.  Absence of "menace of any penalty"

The Committee recalls that, since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. However, under the terms of section 720(1) of the Code of Criminal Procedure, work "is taken into account in assessing a convict’s reinsertion potential and good behaviour" and, under section 721(1), a reduction of sentence can be granted to prisoners detained under one or more sentences of imprisonment "where they have given sufficient proof of good conduct". A reduction in sentence may therefore depend on work activities. With reference to paragraph 21 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that it was made clear during the preparatory work for the Convention in relation to the terms "under the menace of any penalty" in the definition of forced labour provided in Article 2, paragraph 1, of the Convention, that the penalty in question need not take the form of penal sanctions, but might take the form also of a loss of rights or privileges. The fact that, under the terms of sections 720(1) and 721(1), a reduction of sentence may depend on work activities therefore calls into question the consent being freely given to work.

In this respect, the Committee notes with interest that the commission of inquiry on the conditions of detention in prison establishments in France (hereinafter "the commission of inquiry") refers in Part IV.D.1(d) of its report (page 104), to "the now automatic granting of reductions of sentence". However, the proposal made by the commission of inquiry in this respect goes in the opposite direction, namely that, "in order to encourage work by detainees, and the acquisition of experience, it would be desirable to take into account these activities in the now automatic granting of reductions of sentence". For the above reasons, this proposal undermines consent being freely given by the prisoner, and therefore compliance with the Convention, where work is performed in a workshop or prison under private management and thus does not come within the exception set out in Article 2, paragraph 2(c), for prison labour. The Committee therefore hopes that, rather than returning to the effective application of section 721(1) of the Code of Criminal Procedure, the new prison Bill that is currently being prepared will sever any link between the fact of accepting or not accepting work and prospects for a reduction of sentence, and that the Government will soon be in a position to report on provisions adopted to this end.

As to encouraging detainees to work, the Committee considers that the mandate given by section D.102(2) of the Code of Criminal Procedure (cited in point 2 below) offers potential which, judging from the report of the commission of inquiry, is far from being fully realized and which is in line with the Convention.

  2.  Conditions approximating those of a free labour relationship

With reference to points 10 and 11 of its general observation under the Convention and to paragraphs 132 et seq. of its General Report for the previous year, the Committee notes with interest that, under the terms of section D.102(2) of the Code of Criminal Procedure:

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

  (a)  Remuneration

In its report, the Government indicates that in 2000 the hourly (gross) rate of the minimum wage of the prison administration for work for hire, as set out in the contract of mixed management establishments, has been generalized to all establishments and amounts, depending on the nature of the establishments, to between 17.22 and 20 francs an hour. In this respect, the Committee also notes that, in the report of its visit to the Aix-Luynes detention centre, managed by a private contractor, namely the company GECEP, the commission of inquiry noted that in the hired workshops where detainees work for some 20 companies:

Work is remunerated at a piece-work rate, or based on a flat rate of 18 francs an hour as a minimum, which is therefore higher than the minimum wage for prisons of 17 francs an hour, a concept without legal basis put forward by the head of the private centre.

The Committee also notes that the hourly gross rate of the minimum growth wage, the statutory minimum wage ("SMIC"), which is not therefore imposed on hiring enterprises, was raised on 1 July 1999 from 40.22 francs to 40.72 francs. It also notes that the gross average remuneration of detainees working for hiring enterprises is lower than the average paid by the Industrial Board of Prison Establishments (RIEP), which is a state body.

However, the average remuneration is by far the lowest for the "general service work" intended to ensure the operation of the prison establishment, which in an establishment such as Luynes is administered by private enterprises, either as the principal manager, or as the co-contractors or the subcontractors of a co-contractor. The Committee notes with interest the proposal made by the commission of inquiry in Part IV.D.1(a) of its report to increase the remuneration of detainees employed on general service work. However, the minimum monthly amount indicated by way of illustration (1,000 francs, compared with 740 francs on average today) appears to be far from reflecting the principle set out in section D.102(2) of the Code of Criminal Procedure recalled above. The Committee also notes the Government’s indication in its report to the effect that:

For detainees engaged in general service work (the service allowing the operation of the establishment, such as catering and maintenance …), an adjustment of remuneration, covered by the operational budget of each establishment, was undertaken in the context of a new measure in 2001 and it is envisaged to continue this effort in 2002.

In the absence of any figures provided in this respect, the Committee recalls that, for the reasons set out in points 10 and 11 of its general observation under the Convention and in paragraphs 132 et seq. of its General Report the previous year, all detainees assigned to general service work who work for prison managers or other private enterprises, and who are not therefore covered by the exception set out in Article 2, paragraph 2(c), of the Convention, must receive gross remuneration approximating the levels of remuneration in occupational activities outside prisons, in the same way as detainees working for private contractors in workshops, which moreover would correspond to the principle set out in section D.102(2) of the Code of Criminal Procedure.

With regard to the level of wages of workers who are hired out, detainees, who are handicapped in their access to the labour market, may also be in competition with other persons in a situation of dependence. In this respect, during its visit to the Paris La Santé prison, the commission of inquiry noted that:

Recalling that the disabled in sheltered work centres (CAT) earned around 25 per cent of the minimum wage, the contractor met by the delegation considered that detainees were not being exploited.

In its proposals in Part IV.D.1(a) of its report, the commission of inquiry demonstrated resignation in this respect:

It would appear to be difficult to increase the remuneration of detainees employed by contractors. There would be a risk of the "disappearance" of contractors at a time when it is more than ever necessary to develop prison work. However, it would be desirable to provide detainees with wage slips.

In practice, the low level of gross remuneration (reduced still further by compensation for victims, legal expenses and alimony contributions) does not favour the development of prison work, as the commission of inquiry noted in Paris La Santé:

As a result the number of detainees who are candidates for work has been tending to fall for some years.

Over and above the important differences between the average remuneration for the different types of work available to detainees, the Committee notes from the report of the commission of inquiry extreme variations in remuneration, both between the various prison establishments and within the same establishment, not only between general service work and hired work, but also between the various contracting enterprises.

In one same establishment, gross monthly remuneration can vary between 400 and 1,400 francs for general service work and from 2,000 to nearly 10,000 francs for detainees employed by around ten contracting enterprises. In these conditions, the Committee hopes that, in accordance with section D.102(2) of the Code of Criminal Procedure, gross remuneration complying with the hourly rates of the statutory minimum wage will progressively be secured for all prisoners working for private contractors or prison managers, and that the Government will report on the measures taken to this end.

  (b)  Contracts of employment

The Committee recalls that under the terms of section 720(3) of the Code of Criminal Procedure:

The employment relations of detainees are not covered by an employment contract. An exception may be made to this rule for activities performed outside prison establishments.

Similarly, according to section D.103(2) of the Code:

The relations between the employer entity and the detainee are exempt from any employment contract: an exception is made to this rule for detainees admitted to the system of semi-freedom. This rule may also be set aside, in accordance with section 720, for detainees performing work outside prison establishments in the conditions set out in section 723(1).

In its last report, the Government indicates that the prison administration wishes to further define the employment relationship and that:

Two possibilities are now available: one, relating to the administration, in line with the objective of approximating prison work to normal law, consists of establishing an "employment document", setting out the obligations of the detainee and the prison administration and, in particular, the conditions for the conclusion and termination of the employment; the other, in prison law, consists of taking measures related to the principles of labour law, and particularly deciding on the desirability of establishing a specific employment contract, which should be based on labour law wherever there is no incompatibility with the obligations arising out of such law and those deriving from the situation of detention, or merely incorporating the necessary limits.

The Committee notes this information with interest. It therefore hopes that the new prison Bill will permit to offer all detainees working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration and operating in the manner of a temporary work agency. The Committee requests the Government to report on all provisions adopted to this end.

  (c)  Safety and health

The Committee notes with interest the Government’s statement in its report that the adaptation to the relevant rules of the machines used in the workshops administered by the prison employment service was completed in 2000. It hopes that the Government will soon be able to make the same statement for the machines used in the workshops and establishments administered by private enterprises, considered below.

Referring also to its observation in relation to the involvement of the labour inspectorate since 1999, the Committee notes with interest that the commission of inquiry observed, during its visit to the Le Mans prison, that the reports of labour inspectors "have changed things". However, the situation appears to be very uneven with regard to work premises. During its visit to the Melun detention centre:

The delegation noted that workshops, built in 1870, were operational, well lit and in accordance with safety standards, which is far from being the case in most of the prisons visited.

Similarly, in Part II.B.1(a) of its report, under the title "A generally unsatisfactory health situation", the commission of inquiry observed that:

There is in this respect a total contradiction between the "law" and practice. Indeed, the regulations of the Code of Criminal Procedure (section II, Chapter VIII, Title II) set out very precise rules concerning the volume of air, lighting, heating and ventilation of detention premises.

In its proposals contained in Part IV.D of its report the commission of inquiry links the promotion of work to safety and health:

The commission considers that prison work and training must be encouraged, even in detention centres. It is necessary for workshops to be located in premises that are ventilated, sufficiently large and which respect fire safety regulations, which requires space and improvements in old establishments.

Recalling the Government’s statement cited in its observation that the Prime Minister has committed the Government to a vast programme of renovation of prisons to achieve a substantial improvement in the conditions of detention of prisoners, the Committee hopes that the necessary measures will be taken to ensure that the normal safety and health conditions of free work are complied with in prison workplaces, and that the Government will soon be in a position to report on the results achieved in this respect.

  3.  Conclusion

The Committee notes with interest that, in the report of the commission of inquiry Mr. Guy Canivet, First President of the Court of Cassation, recalled in his hearing that:

-  the law applies in prison in the same way as elsewhere and prisons are not extraterritorial;

-  all detainees, while being detained, remain citizens.

The report of the commission of inquiry, entitled: "Prisons: A humiliation for the Republic", brought to the attention of the public grave contradictions between the law and practice, thereby encouraging a constructive rise in awareness. With regard to compliance with the international Convention, the Committee is bound to note that the development of national law and practice concerning prison work, while calling for additional developments as outlined in this request, is based on principles which give grounds for hoping that their full achievement will result in the required improvements.

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The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters.

The Committee has noted the report of the Commission of Inquiry on conditions of detention in prison establishments in France, which was set up under a resolution adopted by the Senate on 10 February 2000.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. Prisoners working for private enterprises. The Committee recalls that, in accordance with section D.103(1) of the Code of Criminal Procedure, work in prison establishments is performed principally under one of the following three forms: general service work (intended to discharge the various types of work or tasks necessary for the operation of the prison establishment); the hiring of prison labour; and work for the Industrial Board of Prison Establishments (RIEP). Where labour is hired, prisoners work for a private enterprise in the event that the hiring enterprise is in the private sector, which is most frequently the case. Furthermore, in the few cases in which the prison establishment itself is administered by a private enterprise, detainees assigned to general tasks in the prison establishment are thereby in the service of a private enterprise.

Free consent and conditions of employment approximating a free labour relationship. With reference to its general observation under the Convention, the Committee recalls that since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. Under section D.99(1) of the Code of Criminal Procedure:

Detainees, irrespective of their penal category, may request that work be proposed to them.

Under the terms of section D.102(2):

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

According to section D.106(2):

Such remuneration shall be subject to employers’ and workers’ contributions under the terms established, for sickness, maternity and old-age insurance, by sections R.381-97 to R.381-109 of the Code of Social Security.

Prisoners thus benefit from social security in the same way as other workers. Reasonable deductions from remuneration are furthermore envisaged in sections D.112 and D.113 to share in the costs of maintenance, indemnify civil parties and for alimony payments.

According to section D.108:

Working time by day and by week, determined by the internal rules of the establishment, shall approximate the hours of work in the region or in the type of work concerned; in no case may they be higher. Observance of weekly rest and national holidays shall be ensured; working schedules shall foresee the time required for rest, meals, exercise and educational and leisure activities.

The Committee also notes with interest, further to its previous comments on this point, that under section D.109 of the Code of Criminal Procedure, as amended by Decree No. 98-1099 of 8 December 1998:

The safety and health measures provided for in Book II, Title III of the Labour Code and the decrees issues thereunder … shall be applicable to work performed by detainees within and outside prison establishments …

and the intervention of the labour inspection services is envisaged in this respect by section D.109-1 of the Code of Criminal Procedure, incorporated by the above Decree No. 98-1099, and regulated by a joint circular of the Ministries of Justice and of Employment and Solidarity of 16 July 1999, which was attached to the Government’s report.

Finally, under section D.110:

The right to compensation for employment accidents and occupational diseases shall be recognized for detainees performing work, in accordance with the special scheme established by Decree No. 49-1585 of 10 December 1949 (codified text, cf. sections D.412-36 to D.412-71 of the Code of Social Security) respecting the application to detainees of Act No. 46-2426 of 30 October 1946 on the prevention and compensation of employment accidents and occupational diseases.

What remains to be done. It appears from the above provisions that the guiding principles of French legislation governing prison work respond on a number of essential points, and in an exemplary fashion, to the criteria set forth by the Committee so that work performed by a prisoner for a private enterprise can be assimilated to a free labour relationship and not come under the prohibitions set out in Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. However, in certain respects, already noted in the Committee’s previous comments, the legislative provisions governing prison work still require amendments to this effect: firstly, with regard to the elimination of "the menace of any penalty", within the meaning of Article 2, paragraph 1, of the Convention, in the event of refusal to work; and secondly, amendments are necessary to ensure that the relationship between a prisoner working for a private enterprise and her or his employer is always covered by an employment contract, and not only in the case of certain categories of detainees. Furthermore, with reference also to its previous comments concerning remuneration for work and safety and health conditions, the Committee notes that the report of the Commission of Inquiry on the conditions of detention in prison establishments in France found a number of serious deficiencies in practice, some of which have a bearing on the observance of conditions under which the work of a prisoner can be assimilated to a free labour relationship. In all these respects, the Committee notes with interest the Government’s statement in its report that the Prime Minister committed the Government in November 2000 to two series of measures: a vast programme for the renovation of prisons with a view to a substantial improvement in the conditions of detention of prisoners, and the formulation of major legislation on the discharge of sentences. The Committee hopes that account will be taken in this exercise of the points mentioned above, which it develops in greater detail in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. With reference to its observation on the application of the Convention in relation to prisoners working for private enterprises, the Committee draws the Government’s attention to the following points.

1.  Absence of "menace of any penalty"

The Committee recalls that, since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. However, under the terms of section 720(1) of the Code of Criminal Procedure, work "is taken into account in assessing a convict’s reinsertion potential and good behaviour" and, under section 721(1), a reduction of sentence can be granted to prisoners detained under one or more sentences of imprisonment "where they have given sufficient proof of good conduct". A reduction in sentence may therefore depend on work activities. With reference to paragraph 21 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that it was made clear during the preparatory work for the Convention in relation to the terms "under the menace of any penalty" in the definition of forced labour provided in Article 2, paragraph 1, of the Convention, that the penalty in question need not take the form of penal sanctions, but might take the form also of a loss of rights or privileges. The fact that, under the terms of sections 720(1) and 721(1), a reduction of sentence may depend on work activities therefore calls into question the consent being freely given to work.

In this respect, the Committee notes with interest that the commission of inquiry on the conditions of detention in prison establishments in France (hereinafter "the commission of inquiry") refers in Part IV.D.1(d) of its report (page 104), to "the now automatic granting of reductions of sentence". However, the proposal made by the commission of inquiry in this respect goes in the opposite direction, namely that, "in order to encourage work by detainees, and the acquisition of experience, it would be desirable to take into account these activities in the now automatic granting of reductions of sentence". For the above reasons, this proposal undermines consent being freely given by the prisoner, and therefore compliance with the Convention, where work is performed in a workshop or prison under private management and thus does not come within the exception set out in Article 2, paragraph 2(c), for prison labour. The Committee therefore hopes that, rather than returning to the effective application of section 721(1) of the Code of Criminal Procedure, the new prison Bill that is currently being prepared will sever any link between the fact of accepting or not accepting work and prospects for a reduction of sentence, and that the Government will soon be in a position to report on provisions adopted to this end.

As to encouraging detainees to work, the Committee considers that the mandate given by section D.102(2) of the Code of Criminal Procedure (cited in point 2 below) offers potential which, judging from the report of the commission of inquiry, is far from being fully realized and which is in line with the Convention.

2.  Conditions approximating those of a free labour relationship

With reference to points 10 and 11 of its general observation under the Convention and to paragraphs 132 et seq. of its General Report for the previous year, the Committee notes with interest that, under the terms of section D.102(2) of the Code of Criminal Procedure:

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

  (a)  Remuneration

In its report, the Government indicates that in 2000 the hourly (gross) rate of the minimum wage of the prison administration for work for hire, as set out in the contract of mixed management establishments, has been generalized to all establishments and amounts, depending on the nature of the establishments, to between 17.22 and 20 francs an hour. In this respect, the Committee also notes that, in the report of its visit to the Aix Luynes detention centre, managed by a private contractor, namely the company GECEP, the commission of inquiry noted that in the hired workshops where detainees work for some 20 companies:

Work is remunerated at a piece work rate, or based on a flat rate of 18 francs an hour as a minimum, which is therefore higher than the minimum wage for prisons of 17 francs an hour, a concept without legal basis put forward by the head of the private centre.

The Committee also notes that the hourly gross rate of the minimum growth wage, the statutory minimum wage ("SMIC"), which is not therefore imposed on hiring enterprises, was raised on 1 July 1999 from 40.22 francs to 40.72 francs. It also notes that the gross average remuneration of detainees working for hiring enterprises is lower than the average paid by the Industrial Board of Prison Establishments (RIEP), which is a state body.

However, the average remuneration is by far the lowest for the "general service work" intended to ensure the operation of the prison establishment, which in an establishment such as Luynes is administered by private enterprises, either as the principal manager, or as the co contractors or the subcontractors of a co contractor. The Committee notes with interest the proposal made by the commission of inquiry in Part IV.D.1(a) of its report to increase the remuneration of detainees employed on general service work. However, the minimum monthly amount indicated by way of illustration (1,000 francs, compared with 740 francs on average today) appears to be far from reflecting the principle set out in section D.102(2) of the Code of Criminal Procedure recalled above. The Committee also notes the Government’s indication in its report to the effect that:

For detainees engaged in general service work (the service allowing the operation of the establishment, such as catering and maintenance …), an adjustment of remuneration, covered by the operational budget of each establishment, was undertaken in the context of a new measure in 2001 and it is envisaged to continue this effort in 2002.

In the absence of any figures provided in this respect, the Committee recalls that, for the reasons set out in points 10 and 11 of its general observation under the Convention and in paragraphs 132 et seq. of its General Report the previous year, all detainees assigned to general service work who work for prison managers or other private enterprises, and who are not therefore covered by the exception set out in Article 2, paragraph 2(c), of the Convention, must receive gross remuneration approximating the levels of remuneration in occupational activities outside prisons, in the same way as detainees working for private contractors in workshops, which moreover would correspond to the principle set out in section D.102(2) of the Code of Criminal Procedure.

With regard to the level of wages of workers who are hired out, detainees, who are handicapped in their access to the labour market, may also be in competition with other persons in a situation of dependence. In this respect, during its visit to the Paris La Santé prison, the commission of inquiry noted that:

Recalling that the disabled in sheltered work centres (CAT) earned around 25 per cent of the minimum wage, the contractor met by the delegation considered that detainees were not being exploited.

In its proposals in Part IV.D.1(a) of its report, the commission of inquiry demonstrated resignation in this respect:

It would appear to be difficult to increase the remuneration of detainees employed by contractors. There would be a risk of the "disappearance" of contractors at a time when it is more than ever necessary to develop prison work. However, it would be desirable to provide detainees with wage slips.

In practice, the low level of gross remuneration (reduced still further by compensation for victims, legal expenses and alimony contributions) does not favour the development of prison work, as the commission of inquiry noted in Paris La Santé:

As a result the number of detainees who are candidates for work has been tending to fall for some years.

Over and above the important differences between the average remuneration for the different types of work available to detainees, the Committee notes from the report of the commission of inquiry extreme variations in remuneration, both between the various prison establishments and within the same establishment, not only between general service work and hired work, but also between the various contracting enterprises.

In one same establishment, gross monthly remuneration can vary between 400 and 1,400 francs for general service work and from 2,000 to nearly 10,000 francs for detainees employed by around ten contracting enterprises. In these conditions, the Committee hopes that, in accordance with section D.102(2) of the Code of Criminal Procedure, gross remuneration complying with the hourly rates of the statutory minimum wage will progressively be secured for all prisoners working for private contractors or prison managers, and that the Government will report on the measures taken to this end.

  (b)  Contracts of employment

The Committee recalls that under the terms of section 720(3) of the Code of Criminal Procedure:

The employment relations of detainees are not covered by an employment contract. An exception may be made to this rule for activities performed outside prison establishments.

Similarly, according to section D.103(2) of the Code:

The relations between the employer entity and the detainee are exempt from any employment contract: an exception is made to this rule for detainees admitted to the system of semi-freedom. This rule may also be set aside, in accordance with section 720, for detainees performing work outside prison establishments in the conditions set out in section 723(1).

In its last report, the Government indicates that the prison administration wishes to further define the employment relationship and that:

Two possibilities are now available: one, relating to the administration, in line with the objective of approximating prison work to normal law, consists of establishing an "employment document", setting out the obligations of the detainee and the prison administration and, in particular, the conditions for the conclusion and termination of the employment; the other, in prison law, consists of taking measures related to the principles of labour law, and particularly deciding on the desirability of establishing a specific employment contract, which should be based on labour law wherever there is no incompatibility with the obligations arising out of such law and those deriving from the situation of detention, or merely incorporating the necessary limits.

The Committee notes this information with interest. It therefore hopes that the new prison Bill will permit to offer all detainees working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration and operating in the manner of a temporary work agency. The Committee requests the Government to report on all provisions adopted to this end.

  (c)  Safety and health

The Committee notes with interest the Government’s statement in its report that the adaptation to the relevant rules of the machines used in the workshops administered by the prison employment service was completed in 2000. It hopes that the Government will soon be able to make the same statement for the machines used in the workshops and establishments administered by private enterprises, considered below.

Referring also to its observation in relation to the involvement of the labour inspectorate since 1999, the Committee notes with interest that the commission of inquiry observed, during its visit to the Le Mans prison, that the reports of labour inspectors "have changed things". However, the situation appears to be very uneven with regard to work premises. During its visit to the Melun detention centre:

The delegation noted that workshops, built in 1870, were operational, well lit and in accordance with safety standards, which is far from being the case in most of the prisons visited.

Similarly, in Part II.B.1(a) of its report, under the title "A generally unsatisfactory health situation", the commission of inquiry observed that:

There is in this respect a total contradiction between the "law" and practice. Indeed, the regulations of the Code of Criminal Procedure (section II, Chapter VIII, Title II) set out very precise rules concerning the volume of air, lighting, heating and ventilation of detention premises.

In its proposals contained in Part IV.D of its report the commission of inquiry links the promotion of work to safety and health:

The commission considers that prison work and training must be encouraged, even in detention centres. It is necessary for workshops to be located in premises that are ventilated, sufficiently large and which respect fire safety regulations, which requires space and improvements in old establishments.

Recalling the Government’s statement cited in its observation that the Prime Minister has committed the Government to a vast programme of renovation of prisons to achieve a substantial improvement in the conditions of detention of prisoners, the Committee hopes that the necessary measures will be taken to ensure that the normal safety and health conditions of free work are complied with in prison workplaces, and that the Government will soon be in a position to report on the results achieved in this respect.

3.  Conclusion

The Committee notes with interest that, in the report of the commission of inquiry Mr. Guy Canivet, First President of the Court of Cassation, recalled in his hearing that:

-  the law applies in prison in the same way as elsewhere and prisons are not extraterritorial;

-  all detainees, while being detained, remain citizens.

The report of the commission of inquiry, entitled: "Prisons: A humiliation for the Republic", brought to the attention of the public grave contradictions between the law and practice, thereby encouraging a constructive rise in awareness. With regard to compliance with the international Convention, the Committee is bound to note that the development of national law and practice concerning prison work, while calling for additional developments as outlined in this request, is based on principles which give grounds for hoping that their full achievement will result in the required improvements.

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The Committee notes the Government’s reply to its previous observations. It also notes the report of the Commission of Inquiry on conditions of detention in prison establishments in France, which was set up under a resolution adopted by the Senate on 10 February 2000.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. Prisoners working for private enterprises. The Committee recalls that, in accordance with section D.103(1) of the Code of Criminal Procedure, work in prison establishments is performed principally under one of the following three forms: general service work (intended to discharge the various types of work or tasks necessary for the operation of the prison establishment); the hiring of prison labour; and work for the Industrial Board of Prison Establishments (RIEP). Where labour is hired, prisoners work for a private enterprise in the event that the hiring enterprise is in the private sector, which is most frequently the case. Furthermore, in the few cases in which the prison establishment itself is administered by a private enterprise, detainees assigned to general tasks in the prison establishment are thereby in the service of a private enterprise.

Free consent and conditions of employment approximating a free labour relationship. With reference to its general observation under the Convention, the Committee recalls that since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. Under section D.99(1) of the Code of Criminal Procedure:

Detainees, irrespective of their penal category, may request that work be proposed to them.

Under the terms of section D.102(2):

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

According to section D.106(2):

Such remuneration shall be subject to employers’ and workers’ contributions under the terms established, for sickness, maternity and old-age insurance, by sections R.381-97 to R.318-109 of the Code of Social Security.

Prisoners thus benefit from social security in the same way as other workers. Reasonable deductions from remuneration are furthermore envisaged in sections D.112 and D.113 to share in the costs of maintenance, indemnify civil parties and for alimony payments.

According to section D.108:

Working time by day and by week, determined by the internal rules of the establishment, shall approximate the hours of work in the region or in the type of work concerned; in no case may they be higher. Observance of weekly rest and national holidays shall be ensured; working schedules shall foresee the time required for rest, meals, exercise and educational and leisure activities.

The Committee also notes with interest, further to its previous comments on this point, that under section D.109 of the Code of Criminal Procedure, as amended by Decree No. 98 1099 of 8 December 1998:

The safety and health measures provided for in Book II, Title III of the Labour Code and the decrees issues thereunder … shall be applicable to work performed by detainees within and outside prison establishments …

and the intervention of the labour inspection services is envisaged in this respect by section D.109 1 of the Code of Criminal Procedure, incorporated by the above Decree No. 98 1099, and regulated by a joint circular of the Ministries of Justice and of Employment and Solidarity of 16 July 1999, which was attached to the Government’s report.

Finally, under section D.110:

The right to compensation for employment accidents and occupational diseases shall be recognized for detainees performing work, in accordance with the special scheme established by Decree No. 49 1585 of 10 December 1949 (codified text, cf. sections D.412 36 to D.412 71 of the Code of Social Security) respecting the application to detainees of Act No. 46 2426 of 30 October 1946 on the prevention and compensation of employment accidents and occupational diseases.

What remains to be done. It appears from the above provisions that the guiding principles of French legislation governing prison work respond on a number of essential points, and in an exemplary fashion, to the criteria set forth by the Committee so that work performed by a prisoner for a private enterprise can be assimilated to a free labour relationship and not come under the prohibitions set out in Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. However, in certain respects, already noted in the Committee’s previous comments, the legislative provisions governing prison work still require amendments to this effect: firstly, with regard to the elimination of "the menace of any penalty", within the meaning of Article 2, paragraph 1, of the Convention, in the event of refusal to work; and secondly, amendments are necessary to ensure that the relationship between a prisoner working for a private enterprise and her or his employer is always covered by an employment contract, and not only in the case of certain categories of detainees. Furthermore, with reference also to its previous comments concerning remuneration for work and safety and health conditions, the Committee notes that the report of the Commission of Inquiry on the conditions of detention in prison establishments in France found a number of serious deficiencies in practice, some of which have a bearing on the observance of conditions under which the work of a prisoner can be assimilated to a free labour relationship. In all these respects, the Committee notes with interest the Government’s statement in its report that the Prime Minister committed the Government in November 2000 to two series of measures: a vast programme for the renovation of prisons with a view to a substantial improvement in the conditions of detention of prisoners, and the formulation of major legislation on the discharge of sentences. The Committee hopes that account will be taken in this exercise of the points mentioned above, which it develops in greater detail in a request addressed directly to the Government.

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The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following points:

The Committee has noted the detailed information contained in the Government’s reports in response to the Committee’s earlier comments, as well as the observations submitted by the French Democratic Confederation of Labour (CFDT) in October 1996 and September 1998.

  Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention.  1.  In its earlier comments, the Committee raised a certain number of points relative to prison labour and, in particular, the question of consent freely given by the prisoner, the employment contract, and the wages and conditions of work of prisoners in the event that they are made available to private enterprises. The Committee requested the Government to adopt the necessary measures both in law and in practice to ensure that the employment conditions of these prisoners allow their situation to be assimilated to that of free workers.

2.  The CFDT in its communication reiterated its request for a contract to be concluded between the prison administration and prisoners, defining the obligations of the parties. The CFDT also considered that the supervision of prison labour should be entrusted to a labour inspection service, since legislation relating to health and safety at work should be applied in prisons under the same conditions as elsewhere.

3.  The Committee has taken due note of the Government’s statement that a Bill establishing a labour inspection service has been drawn up, and a circular defining the methods of work of the prison labour inspection services with regard to health and safety at work and vocational training has also been drafted. The Committee hopes that the Government will provide copies of the final texts as soon as they have been adopted.

4.  The Committee has also noted that, following an agreement concluded between the prison authorities and the local medical service, medical examinations will shortly be introduced, during a trial period, for prisoners who are working. The Government indicated that a legal and social text with respect to prison labour is being drawn up and that the themes covered (remuneration, social protection, health and safety at work) will provide responses to the questions that are being raised in this regard. The Committee trusts that the Government will provide full information in its next report.

5.  Finally, the Committee has noted with interest the Government’s statement that the average daily wage paid to prisoners has been increased although disparities remain among different types of prison labour. The Committee requests the Government to continue to take measures to ensure that wages and employment conditions of prisoners who are made available to private enterprises conform to relevant standards and to provide information in respect of the measures adopted or envisaged in this regard.

6.  The Committee recalls that the Convention clearly excludes the use of prison labour for the benefit of private enterprises; however, where the necessary safeguards exist to ensure that prisoners accept work voluntarily and prison labour is carried out under the supervision and control of the public authorities, the Committee refers to paragraph 97 of the General Survey of 1979 on the abolition of forced labour and paragraphs 116 to 125 of the General Report of 1998: the Committee considers that an employment contract could, particularly in prisons, resolve this problem by ensuring that the necessary safeguards are provided. However, the Committee hopes that the Government will provide in its next report all the necessary information to enable a general assessment of the situation in respect of these provisions of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes the detailed information contained in the Government's last reports in response to the Committee's previous comments as well as the new observations submitted by the French Democratic Confederation of Labour (CFDT) in October 1996 and September 1998.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. 1. In its previous comments, the Committee raised a certain number of points relative to prison labour and, in particular, the question of consent freely given by the prisoner, the employment contract, and the wages and conditions of work of prisoners in the event that they are made available to private enterprises. The Committee requested the Government to adopt the necessary measures both in law and in practice to ensure that the employment conditions of these prisoners allow their situation to be assimilated to that of free workers.

2. The CFDT in its recent communication reiterates its request for a contract to be concluded between the prison administration and prisoners, defining the obligations of the parties. The CFDT also considers that the supervision of prison labour should be entrusted to a labour inspection service, since legislation relating to health and safety at work should be applied in prisons under the same conditions as elsewhere.

3. The Committee takes due note of the Government's statement that a Bill establishing a labour inspection service has been drawn up, and a circular defining the methods of work of the prison labour inspection services with regard to health and safety at work and vocational training has also been drafted. The Committee hopes that the Government will provide copies of the final texts as soon as they have been adopted.

4. The Committee also notes that, following an agreement concluded between the prison authorities and the local medical service, medical examinations will shortly be introduced, during a trial period, for prisoners who are working. The Government indicates that a legal and social text with respect to prison labour is being drawn up and that the themes covered (remuneration, social protection, health and safety at work) will provide responses to the questions that are being raised in this regard. The Committee trusts that the Government will provide full information in its next report.

5. Finally, the Committee notes with interest the Government's statement that the average daily wage paid to prisoners has been increased although disparities remain among different types of prison labour. The Committee requests the Government to continue to take measures to ensure that wages and employment conditions of prisoners who are made available to private enterprises conform to relevant standards and to provide information in respect of the measures adopted or envisaged in this regard.

6. The Committee recalls that the Convention clearly excludes the use of prison labour for the benefit of private enterprises; however, where the necessary safeguards exist to ensure that prisoners accept work voluntarily and prison labour is carried out under the supervision and control of the public authorities, the Committee refers to paragraph 97 of the General Survey of 1979 on the abolition of forced labour and paragraphs 116 to 125 of the General Report of 1998: the Committee considers that an employment contract could, particularly in prisons, resolve this problem by ensuring that the necessary safeguards are provided. However, the Committee hopes that the Government will provide in its next report all the necessary information to enable a general assessment of the situation in respect of these provisions of the Convention.

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In its previous direct request the Committee referred to the creation of a national service of solidarity and requested that the Government provide information on the status of this Bill before Parliament.

The Committee notes that the Government's report did not address this question and hopes that the next report will contain the information requested.

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The Committee notes the Government's report for the period from 1 January to 31 December 1994 and the observations on this matter sent to the Government by the French Democratic Confederation of Labour (CFDT), of which a copy was sent to the ILO under cover of a letter of 26 June 1995.

Article 2, paragraphs 1 and 2(c), of the Convention. In its report, the Government, referring to the definition of forced or compulsory labour given in Article 2, paragraph 1 of the Convention and the conditions laid down in Article 2, paragraph 2(c) for the exception concerning compulsory prison labour, recalls that prison labour satisfies the obligations of the Convention provided that it corresponds to one of the following two situations: either it is not exacted under the menace of any penalty from a person who has not offered himself voluntarily for that work; or, while being compulsory as a consequence of the conviction, it does not involve being hired to private persons. The Government considers that the legislative principles and regulatory provisions applicable to prison labour carried out in French prisons make it correspond fully to the first of these two situations.

In its previous observation, the Committee raised a number of questions concerning consent freely given by the prisoner, accompanied by the guarantees that labour law links to an employment contract, especially in regard to wages and social welfare, and it inquired more closely about the legal set-up of prisons the construction and management of which has been put into the hands of private enterprises, and on the conditions under which the prisoner is subjected to this "private operator".

Prisoner consent. In its previous observation, the Committee noted that the law of 22 June 1987 amending section 720 of the Code of Criminal Procedure made prison labour voluntary; however, according to the same law, both work and professional training are factors in assessing a convict's good behaviour and reinsertion potential. The Committee noted that under section 721 of the Code of Criminal Procedure, a reduction of sentence can be granted to prisoners for good behaviour. This assessment, which is to be made by the judge charged with following up the implementation of sentences, as provided under Article D.253 of the Code of Criminal Procedure, is based on the prisoner's overall behaviour, but also on his assiduousness at work. The Committee requested that the Government indicate the measures taken to ensure that the prisoner's consent cannot be vitiated by the fact that a favourable assessment implies assiduousness at work. In private prisons there are two inter-related forms of constraint: first, the private enterprise operating a prison includes prison labour in its profit calculations and, second, the private enterprise is not only a user of prison labour, but also exercises, in law or in practice, an important part of the authority which belongs to the prison administration.

In its latest report, the Government considers that the fact that occupational activity may be taken into account under the first paragraph of section L720 in assessing a convict's good behaviour and reinsertion potential can in no way constitute the "menace of any penalty" envisaged in the Convention. On the one hand, in fact, this assessment which may lead to a reduction in the sentence, is not of a kind to be assimilated to a threat of extending the sentence which has been passed on the convict. On the other hand, this assessment applies to good behaviour and reinsertion potential as a whole (section 721 and 721-1 of the Code of Criminal Procedure) shown by a convict and, in particular, success in general or occupational training examinations, conditions of participating in socio-educational, cultural or sports activities, and general behaviour in detention as recorded in the comments made by prison staff, in the opinion of the judge charged with following up the implementation of sentences. The fact that a convict does not wish to pursue an occupational activity, or cannot pursue it, or does not show assiduousness deemed sufficient in this activity, is therefore without effect on the length of his sentence in so far as his participation in the various activities offered to detainees and his behaviour in detention are evidence in themselves of his social integration.

The Committee takes due note of these indications. It notes that section 720 of the Code of Criminal Procedure does not provide that employment activities "may be" taken into account but that they "are" taken into account in assessing a convict's good behaviour and reinsertion potential. In regard to the "menace of any penalty" mentioned in Article 2, paragraph 1, of the Convention, and the difference, from this point of view, between the menace of extending the detention and that of depriving of release normally granted for good behaviour, the Committee recalls that, as it pointed out in paragraph 21 of its General Survey of 1979 on the abolition of forced or compulsory labour, it was specified during examination of the draft Convention by the Conference that the penalty envisaged in Article 2, paragraph 1, need not be in the form of a penal sanction but might take the form also of a loss of rights or privileges.

The menace in question in this case not only governs the initial acceptance of prison work but also accompanies the worker throughout his detention. As the CFDT noted in its observations, section D250 of the Code of Criminal Procedure provides that withdrawal of work is a penalty imposed for a disciplinary offence committed during or on the occasion of the work. This withdrawal has two consequences for the detainee: loss of his income; and a more unfavourable assessment of his reinsertion potential, and hence a consequence for the duration of his sentence. The CFDT considers that the absence of reference to clear contractual provisions, along with the difficulties of contesting internal sanctions handed down by the prison administration make detainees particularly vulnerable, and sometimes forced to accept an employment relationship which is not in accordance with those in the free world; according to the administration's will, the detainee may carry out his work in acceptable conditions or servile conditions.

Employment contract. In its previous observation, the Committee noted that under section 270, paragraph 3, of the Code of Criminal Procedure, the employment relationships of incarcerated persons are not covered by employment contracts. Section D.103 of the aforementioned Code excludes employment contracts in the relations between the prison administration and the detainee, for whom the administration obtains work, and between the concessionaire and the prisoner, who is placed at its disposal as provided in an administrative agreement setting, in particular, the wages and working conditions. The prisoner at work then becomes a worker deprived of a contract and labour law protection. Considering that in the case of private prisons the prison administration is, in law or in practice, in the hands of the enterprise using prison labour, the Committee requested that the Government examine the terms of sections 720, paragraph 3, and D.103 of the Code of Criminal Procedure and take necessary measures so that labour relations and conditions of employment of prisoners are governed by labour law and subject to labour inspection.

In its latest report, the Government, having recalled in some detail that the exercise of an occupational activity assumes a request for employment from the detainee and the agreement of the prison, indicates that the nature of the relationship existing between the detainee and the prison, characterized by the strength of the constraint stemming from the judicial decision, which sets aside the existence of a free and voluntary agreement between the two partners, does not permit the principle of establishing an employment contract between them to prevail. It is for this reason that section D.103 of the Code of Criminal Procedure specifies that these labour relationships do not include any employment contract and that amendment of this text is not envisaged.

The Committee takes due note of these indications; it also notes the CFDT comment that it is this same analysis which, for the Confederation, justifies the requirement of a contractual guarantee in regard to work by detainees.

In regard to the relationship between the prisoner and the private enterprise which uses and directs his work, the Government indicates that in the mixed management "Programme 13000" prisons, the private group has the same competence in organization of work as that of a prison work concessionary enterprise in a publicly managed prison and is subject to the same obligations. The labour relationship between the detainee and the enterprise using the labour or responsible for the work function do not give rise to an employment contract, as the enterprise is deprived of a large proportion of the rights and obligations incumbent on the employer, particularly in terms of recruitment and dismissal, "assignment" and "deassignment" being carried out by public officials.

The Committee observes that the relationship is a triangular one comparable to that existing between a temporary employment agency, the enterprise using labour and the temporary worker with, however, under current national legislation and practice, two differences which have a direct bearing on the observance of the Convention: the temporary worker has an employment contract and the protection of labour law, which is not the case for prison labour; furthermore, prison labour is captive labour in the full sense of the term, namely, in contrast to a temporary worker it has no access in law and in practice to employment other than under the conditions set unilaterally by the prison administration.

The Committee recalls that hiring out prison labour or placing it at the disposal of private enterprises is specifically covered by Article 2, paragraph 2(c), of the Convention, and that only work carried out in conditions of a free employment relationship, accompanied by corresponding guarantees, can be held not to come under the requirements of Article 2, paragraph 2(c).

In the absence of an employment contract and outside the scope of the labour law, it seems difficult or even impossible, particularly in the prison context, to reconstitute the conditions of a free working relationship, as the situation also reveals in respect of remuneration, social security, safety and health, and labour inspection.

Remuneration and conditions of employment. In previous comments, the Committee noted that the Government was aware of the inadequate level of remuneration of prisoners employed by private enterprises, whose "minimum prison wage" was set at 50-60 per cent of the hourly SMIC (minimum growth wage) depending on the prison regime, and that there were difficulties linked to low inmate productivity and to the low level of skills of the prison population. It requested the Government to re-examine the level of remuneration in the different regimes, and to indicate any measures taken or envisaged so that the provisions on the minimum growth wage (SMIC) are applied to prisoners working for private firms.

The Committee notes with interest the detailed information supplied by the Government. It notes that in the workshops of the national labour service in prisons, the average daily income in 1994 was 23 per cent higher than in the concessionary regime. Noting also the detailed comments of the CFDT concerning hourly wages, the right to compensation for industrial accidents and occupational diseases, hygiene and safety, and the role of the labour inspectorate, it requests the Government to communicate its observations concerning the various points raised by the CFDT.

The Committee hopes that the necessary measures will be taken both in law and in practice to ensure that prisoners made available to private enterprises have employment conditions allowing their situation to be assimilated to that of free workers. It requests the Government to supply detailed information on any measures taken to distinguish the situation of these workers in or regarding their employment from their situation in prison, particularly in regard to labour discipline and the assessment of reinsertion potential and good behaviour; to enable them to benefit from an employment contract and full application of labour law; and to improve their wages and working conditions.

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Article 2, paragraph 2(c), of the Convention. In its previous observation, the Committee referred to the conditions under which prison labour for private enterprises could be considered as a free work relationship and thus avoid the prohibition of Article 2, paragraph 2(c), of the Convention. The Committee has taken note of section 720 of the Code of Criminal Procedure, as amended in 1987, according to which penitentiaries will take all necessary measures to provide work for inmates who so desire. It was also noted that employment relationships for prisoners (other than prisoners on semi-release), are not covered by an employment contract (section 720, paragraph 3). The Committee also referred to the level of remuneration paid to prisoners under concessionary agreements and in prison industries.

The Committee notes the comments of the French Democratic Confederation of Labour (CFDT) on the application of Convention No. 105 presented by the Government in December 1994. According to the CFDT, the attribution and withdrawal of prisoners' work assignments depends primarily on the attitude of the prison authorities and not particularly according to the wishes of the prisoners. The CFDT alleges that prison labour, which is no longer compulsory, cannot become a privilege granted and sometimes withdrawn from prisoners as a punishment, and that this presupposes a specific procedure for attributing work assignments and the setting of contractual labour relations according to clear and serious bases. The CFDT further adds that a contractual document should state the terms of employment and remuneration, and that withdrawal of the authorization should be subject to procedural safeguards, including notice to the prisoner, and that only when such conditions are met can one speak of free consent to work.

In its last report, the Government indicates that prisoners are not required to work but may do so if they wish, while restating that prisoners are always paid for their work, and that their remuneration is always set with reference to the legal minimum wage for free labour (SMIC), and that in this framework remuneration takes into account the productivity of a prisoner in comparison with a free labourer performing the same work. The Government further notes that wages are subject to both employer and employee social contributions (withholding) and that prisoners have old-age, sickness, maternity, accident and widow/widower insurance. It is further noted that work in workshops must comply with health and safety regulations for free workers.

The Committee recalled in its previous observation that only work performed under free employment relations, i.e. with the prisoner's consent accompanied by guarantees concerning wages and social welfare, is not within the scope of the text of the Convention.

Prisoner consent. The Committee observes that the law of 22 June 1987 amending section 720 of the Code of Criminal Procedure made prison labour voluntary; however, according to the same law, both work and professional training are factors in assessing a convict's good behaviour and reinsertion potential. The Committee notes that under section 721 of the Code of Criminal Procedure, a reduction of sentence can be granted to prisoners for good behaviour. This assessment, which is to be made by the judge charged with following up the implementation of sentences, as provided under article D.253 of the Code of Criminal Procedure, is based on the prisoner's overall behaviour, but also on his assiduousness at work. The Committee requests that the Government indicate the measures taken to ensure that the prisoner's consent cannot be vitiated by the fact that a favourable assessment implies assiduousness at work. In private prisons there are two interrelated forms of constraint: first, the private enterprise operating the prison includes prison labour in its profit calculations and, second, the private enterprise is not only a user of prison labour, but also retains, both in law and in practice, a large part of the authority which belongs to the prison administration.

Employment contract. The Committee observes that under section 720, paragraph 3, of the Code of Criminal Procedure, the employment relationships of incarcerated persons are not covered by employment contracts. Section D.103 of the aforementioned Code excludes employment contracts in the relations between the prison administration and the detainee, for whom the administration obtains work, and between the concessionary enterprise and the prisoner, who is placed at its disposal as provided in an administrative agreement setting, in particular, the wages and working conditions. The prisoner at work is then a worker deprived of a contract and labour protection. Considering that in the case of private prisons the prison administration is, in law or in practice, in the hands of the enterprise using prison labour, the Committee requests that the Government examine the terms of sections 720, paragraph 3, and D.103 of the Code of Criminal Procedure and take necessary measures so that labour relations and conditions of employmet of prisoners are governed by labour law and subject to labour inspection.

Remuneration. With regard to remuneration, in its previous observation the Committee requested that the Government provide detailed information on changes in the remuneration of prisoners employed by private enterprises, whose "minimum prison wage" was set at 50-60 per cent of the normal minimum hourly wage, according to the regime. The Committee had also noted that the Government was aware of the inadequate level of remuneration, the difficulties of low inmate productivity and the low level of skills of the prison population.

The Committee requests that the Government re-examine the level of remuneration according to different regimes, and to indicate all measures taken or envisaged so that the national minimum wage (SMIC) applies to prisoners working for private firms.

Free employment relationship in private prisons. The Committee has noted that, by agreement, the construction and management of prisons had been put into the hands of private enterprises in the context of "Programme 13,000" (recourse to private capital to build and manage prisons). The Committee notes that "work" is part of the responsibilities given to private management in these prisons. The Committee requests that the Government provide information as to legal regulations applicable to private prisons and on the conditions under which the prisoner is subjected to this "private operator". Such information will help to determine whether, as concerns employment, a relationship similar to that of a free worker can be established.

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The Committee notes that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

The Committee notes that the Council of Ministers decided at its meeting of 24 February 1993 that a national solidarity service would be established, which would be in addition to the five types of service, other than military service, which already exist (cooperation, technical assistance, police, civil security and conscientious objection).

The Committee refers to Article 2, paragraph 2(a), of the Convention and to the explanations in paragraphs 24 to 33 of its General Survey of 1979 on forced or compulsory labour, and hopes and again expresses the hope that the Government will take account of the provisions of the Convention in the drafting of any legislation regarding the above matter and will provide a copy of any Bills submitted to Parliament.

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The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following point:

Article 2, paragraph 2(c), of the Convention. In its previous comments, the Committee referred to section 720 of the Code of Criminal Procedure, as amended in 1987, under which all necessary arrangements are made in prison establishments to ensure that prisoners who so wish may engage in occupational activity. The Committee also noted that the employment relationships of prisoners are not covered by employment contracts (section 720, paragraph 3), except in the case of prisoners on semi-release, but that the work is generally remunerated. Referring more particularly to the work performed by prisoners for enterprises using prison labour, the Committee none the less noted that the average hourly rate of remuneration was less than half the minimum wage (SMIC) and that substantial deductions were made. The Committee asked the Government to indicate the measures taken or under consideration to ensure that the remuneration paid by hiring enterprises is of a comparable level to that paid to free workers and to state who is responsible for the payment of the employers' share of social contributions in the case of hired workers. 1. The Committee noted the detailed information supplied by the Government in its report for the period ending 30 June 1991, particularly concerning the different categories of activity (general service, Prisons' Industrial Board (RIEP), concession, vocational training and other), the distribution of jobs, developments in the methods and objectives of prison labour and the total wages of each category. With regard to the remuneration paid to prisoners, the Government stated that the principle whereby the remuneration of detainees was negotiated at the same level as that of free workers still applied, but that there were still difficulties arising from the quality of work performed in detention, the low skill levels of prison detainees and their lack of vocational training, and the organization of prison labour which precluded achievement of productivity level comparable to that of outside enterprises (short working days, frequent interruptions). The Government also indicated that owing to the economic situation outside prison, immediate alignment with wages paid outside would be unrealistic. The Committee noted however the Government's indications that the prison administration was aware of the overall inadequacy of the level of individual remuneration and is endeavouring to produce a policy to improve it. Since most work is paid at piece-rates, in negotiations with enterprises using prison labour the average productivity in the sector concerned outside the prison was used as the basis for calculation. Thus, a prisoner who attained the outside level of productivity would be paid at least the minimum wage, with upwards or downwards adjustment for any differential. The Government added that, for all prisoners, the employer's share of social contributions was paid by the employer and that for prisoners exercising an activity outside the establishment, ordinary labour law applied (work contract, automatic alignment with working conditions outside, including in respect of remuneration). 2. The Committee also noted the Government's indications concerning the construction of new prison accommodation for 13,000 inmates. It was managed partly by private enterprises, which are responsible for the "labour function". Minimum rates of remuneration had been fixed and these establishments had a "minimum prison wage" which was adjusted annually in keeping with the SMIC (60 per cent of the hourly SMIC rate). The Government pointed out that the methods of organizing prison labour had been reviewed and now included the keeping of files on the activities to be performed, jobs to be filled and the level of remuneration. It added that the prison working day was organized with a view to obtaining better returns on the investments (two five-hour shifts so that machines can be used for ten hours instead of the six hours under the former system); this should also enable the prisoners concerned to have access to other activities in the establishment (e.g. sports, education, social and cultural activities). The Committee recalls again that Article 2, paragraph 2(c), of the Convention expressly prohibits persons from whom work is exacted as a consequence of a conviction in a court of law from being placed at the disposal of private individuals, companies or associations. Only work carried out in conditions of a free employment relationship can be held not to be incompatible with this prohibition; this requires not only the formal consent of the prisoner, but also, in the light of the circumstances of this consent, guarantees and safeguards in respect of wages and social security that are such to justify the labour relationship being regarded as a free one. The Committee asks the Government to provide detailed information on any developments and progress in this respect.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that the Council of Ministers decided at its meeting of 24 February 1993 that a national solidarity service would be established, which would be in addition to the five types of service, other than military service, which already exist (cooperation, technical assistance, police, civil security and conscientious objection).

The Committee refers to Article 2, paragraph 2(a), of the Convention and to the explanations in paragraphs 24 to 33 of its General Survey of 1979 on forced or compulsory labour, and hopes that the Government will take account of the provisions of the Convention in the drafting of any legislation regarding the above matter and will provide a copy of any Bills submitted to Parliament.

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Article 2, paragraph 2(c), of the Convention. In its previous comments, the Committee referred to section 720 of the Code of Criminal Procedure, as amended in 1987, under which all necessary arrangements are made in prison establishments to ensure that prisoners who so wish may engage in occupational activity. The Committee also noted that the employment relationships of prisoners are not covered by employment contracts (section 720, paragraph 3), except in the case of prisoners on semi-release, but that the work is generally remunerated. Referring more particularly to the work performed by prisoners for enterprises using prison labour, the Committee none the less noted that the average hourly rate of remuneration was less than half the minimum wage (SMIC) and that substantial deductions were made. The Committee asked the Government to indicate the measures taken or under consideration to ensure that the remuneration paid by hiring enterprises is of a comparable level to that paid to free workers and to state who is responsible for the payment of the employers' share of social contributions in the case of hired workers.

1. The Committee notes the detailed information supplied by the Government in its report, particularly concerning the different categories of activity (general service, Prisons' Industrial Board (RIEP), concession, vocational training and other), the distribution of jobs, developments in the methods and objectives of prison labour and the total wages of each category.

With regard to the remuneration paid to prisoners, the Government states that the principle whereby the remuneration of detainees is negotiated at the same level as that of free workers still applies, but that there are still difficulties arising from the quality of work performed in detention, the low skill levels of prison detainees and their lack of vocational training, and the organization of prison labour which precludes achievement of productivity level comparable to that of outside enterprises (short working days, frequent interruptions). The Government also indicates that owing to the economic situation outside prison, immediate alignment with wages paid outside would be unrealistic.

The Committee notes however the Government's indications that the prison administration is aware of the overall inadequacy of the level of individual remuneration and is endeavouring to produce a policy to improve it. Since most work is paid at piece-rates, in negotiations with enterprises using prison labour the average productivity in the sector concerned outside the prison is used as the basis for calculation. Thus, a prisoner who attains the outside level of productivity will be paid at least the minimum wage, with upwards or downwards adjustment for any differential.

The Government adds that, for all prisoners, the employer's share of social contributions is paid by the employer and that for prisoners exercising an activity outside the establishment, ordinary labour law applies (work contract, automatic alignment with working conditions outside, including in respect of remuneration).

2. The Committee also notes the Government's indications concerning the construction of new prison accommodation for 13,000 inmates. It is managed partly by private enterprises, which are responsible for the "labour function". Minimum rates of remuneration have been fixed and these establishments have a "minimum prison wage" which is adjusted annually in keeping with the SMIC (60 per cent of the hourly SMIC rate). The Government points out that the methods of organizing prison labour have been reviewed and now include the keeping of files on the activities to be performed, jobs to be filled and the level of remuneration. It adds that the prison working day is organized with a view to obtaining better returns on the investments (two five-hour shifts so that machines can be used for ten hours instead of the six hours under the former system); this should also enable the prisoners concerned to have access to other activities in the establishment (e.g. sports, education, social and cultural activities).

The Committee recalls that Article 2, paragraph 2(c), of the Convention expressly prohibits persons from whom work is exacted as a consequence of a conviction in a court of law from being placed at the disposal of private individuals, companies or associations. The only work which can be considered as an exception to this prohibition is work carried out under the conditions of a free employment relationship; this requires not only the formal consent of the prisoner, but also in the light of the circumstances of this consent, guarantees and safeguards in respect of wages and social security that are such to justify the labour relationship being regarded as a free one.

The Committee asks the Government to provide detailed information on any developments and progress in this respect.

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With reference to its previous direct request concerning the application of Act No. 87-512 of 10 July 1987 respecting national service in the police force, the Committee requests the Government to indicate whether the assignment of young persons who may be incorporated in the national police force, the technical assistance service and the co-operation service, in place of military service, is carried out at the request of those concerned.

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1. Article 2, paragraph 2(c), of the Convention. In previous comments, the Committee noted the general clauses and conditions of employment of detainees within and outside prison establishments contained in the hiring contracts and circulars of the Ministry of Justice of 14 January 1986, and it requested the Government to supply information on the effect given in practice to the provisions of section 720 of the Code of Criminal Procedure and of hiring contracts, particularly regarding the following points: the proportion of detainees who wished to work and who were made available to hiring enterprises; the remuneration actually paid in relation to that of free workers and the deductions made in relation to the level of productivity, and the special conditions and deductions referred to in hiring contracts; the unemployment insurance covering detainees working outside or inside prison.

The Committee notes the information supplied by the Government concerning detainees who exercise an occupational activity or who receive training. It notes in particular that the activities of detainees working for the Prisons Industrial Board (RIEP) is organised and carried out within the framework of the prison administration and that productive activities are carried out by the above administration for other administrative departments and for private enterprises. As regards the activity of detainees who work for hiring enterprises, the prison administration makes available to the enterprises the premises on which the work is organised and the detainees are employed. Their remuneration is in theory negotiated at the same level as that of free workers, although the application of this principle encounters difficulties stemming, in particular, from the low skill levels of prison detainees and the productivity levels, which are lower than in external enterprises. According to the information supplied by the Government, the average daily remuneration for six hours of work was, in September 1989, FF75 for hired workers and FF90 in the RIEP. This remuneration is subject to deductions to cover social contributions in the fields of sickness, old-age and widows' insurance (both the worker's and the employer's contributions) and accident insurance, as well as deductions pertaining to the detainee's imprisonment (maintenance, the earnings that are retained and paid to prisoners upon their release, compensation for victims). The Government indicates that the prison administration is aware of the overall insufficiency of the level of remuneration and is endeavouring to pursue a policy of attracting enterprises that offer better paid work.

The Committee notes that under section 720(3) of the Code of Criminal Procedure the employment relationships of detainees are not covered by employment contracts. The Committee also notes that the average hourly rate of remuneration was FF12.50 in September 1989, while the minimum wage (SMIC), which is the gross hourly wage rate under which no employee may be paid, was FF29.91. The deductions that were made amounted to around 80 per cent of the remuneration.

The Committee refers to paragraphs 97 to 101 of its 1979 General Survey on the Abolition of Forced Labour in which it indicated that the employment of prisoners by private employers is only compatible with the Convention under the conditions of a free employment relationship, that is not only entered into with the consent of the person concerned but is also subject to certain guarantees as to the payment of normal wages and social security, etc.

The Committee notes that, according to the documentation supplied by the Government in its report, 400 private enterprises have employed 8,500 workers and attained a payroll of FF115 million, and it requests the Government to indicate the measures that have been taken or are envisaged to ensure that the remuneration paid by hiring enterprises is of a comparable level to that paid to free workers, not only in overall terms, but also as regards individual wages. It also requests the Government to state whether, for hired workers, the employers' share of social contributions is paid by the detainee.

As regards entitlement to unemployment benefits, the Committee notes the information supplied by the Government to the effect that, under the general unemployment benefit scheme set up by Ordinance No. 84-198 of 21 March 1984, freed detainees benefit from public assistance in the form of the integration allowance that is awarded for a period of one year, and have access to training programmes intended for the long-term unemployed by virtue of a circular dated 15 February 1988.