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Article 1, subparagraph d, of the Convention. Imprisonment with compulsory labour as punishment for participation in strikes. In its previous direct request, the Committee referred to section 11 of the State Security Act, which states that collective work stoppages, walkouts or strikes in public services or public utilities or in activities pertaining to production, transport or commerce that are carried out in a manner inconsistent with the law and disturb the peace or disrupt public utilities or services the compulsory operation of which is established by law, or which harm a vital industry, shall constitute an offence and be liable to imprisonment (presidio) or confinement to a specific place in the territory (relegación) (under the terms of section 32 of the Penal Code, persons sentenced to the penalty of presidio are obliged to carry out work as determined by the prison regulations). Incitement or encouragement of the abovementioned unlawful forms of conduct is subject to the same penalties. The Committee also referred to various provisions of the Labour Code concerning strike procedure (sections 372, 373 and 374) and the exercise of the right to strike (sections 381, 384 and 385), which restrict the exercise of the right to strike and are the subject of comments by the Committee regarding the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee previously noted in particular that the definition of services in which strikes may be banned under section 384 and the list of enterprises in which workers may not strike – drawn up every year by the government authorities – are too broad and go beyond essential services in the strict sense of the term, namely, services the interruption of which would endanger the life, safety or health of the whole or part of the population. The Committee requested the Government to take the necessary steps to amend or repeal the provisions of section 11 of the State Security Act.

The Committee notes that, according to the information provided by the Government, section 11 of the State Security Act was not applied during the period covered by the report. It also notes the Government’s indications concerning prison labour, which is excluded from the scope of the Forced Labour Convention, 1930 (No. 29), provided that the prisoner is not hired to private individuals and that the work is carried out under the supervision and control of the authorities.

As already indicated in paragraphs 141 et seq. of its 2007 General Survey on the eradication of forced labour, the Committee observes that the exemption of prison labour from the scope of Convention No. 29 does not automatically apply to Convention No. 105 and that although, in the majority of cases, labour imposed on persons as a consequence of a conviction in a court of law will have no relevance to the application of Convention No. 105, this Convention affords protection against the obligation to work being imposed on a person, regardless of the form that such work may take, including prison labour, as a punishment for having participated in a strike and following a conviction for such participation.

The Committee refers to its observation concerning the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and hopes that the Government will take the necessary measures to repeal or amend section 11 of the State Security Act which provides for the penalty of imprisonment with compulsory labour for participation in strikes.

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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:

Article 1(d) of the Convention. Imprisonment with compulsory labour as punishment for participation in strikes. In its previous direct request, the Committee referred to section 11 of the State Security Act, which states that collective work stoppages, walkouts or strikes in public services or public utilities or in activities pertaining to production, transport or commerce that are carried out in a manner inconsistent with the law and disturb the peace or disrupt public utilities or services the compulsory operation of which is established by law, or which harm a vital industry, shall constitute an offence and be liable to imprisonment (presidio) or confinement to a specific place in the territory (relegación) (under the terms of section 32 of the Penal Code, persons sentenced to the penalty of presidio are obliged to carry out work as determined by the prison regulations). Incitement or encouragement of the abovementioned unlawful forms of conduct is subject to the same penalties. The Committee also referred to various provisions of the Labour Code concerning strike procedure (sections 372, 373 and 374) and the exercise of the right to strike (sections 381, 384 and 385), which restrict the exercise of the right to strike and are the subject of comments by the Committee regarding the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee previously noted in particular that the definition of services in which strikes may be banned under section 384 and the list of enterprises in which workers may not strike – drawn up every year by the government authorities – are too broad and go beyond essential services in the strict sense of the term, namely, services the interruption of which would endanger the life, safety or health of the whole or part of the population. The Committee requested the Government to take the necessary steps to amend or repeal the provisions of section 11 of the State Security Act.

The Government indicates in its report that what is punishable under section 11 is any mobilization which signifies the interruption or suspension of production, transport or basic services for the population and which would have serious consequences for the latter, with public welfare and the normal functioning of public utility services being deemed to be of greater importance than the interests of those involved in the stoppage. The Government added, however, that it was for the legislative authority to approve any amendment to the legislation in question.

The Committee notes that the Government, in its report on the application of Convention No. 87, states that it has noted the Committee’s observations and that these will be taken into account in forthcoming discussions to be held to bring the national legislation into conformity with the provisions of the Convention.

The Committee hopes that the Government will be able to provide information in its next report on the progress made in amending or repealing the abovementioned provisions with a view to bringing the national legislation into conformity with the Convention, so that the penalty of imprisonment with compulsory labour cannot be imposed for participation in strikes.

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Article 1(d) of the Convention. Imprisonment with compulsory labour as punishment for participation in strikes. In its previous direct request, the Committee referred to section 11 of the State Security Act, which states that collective work stoppages, walkouts or strikes in public services or public utilities or in activities pertaining to production, transport or commerce that are carried out in a manner inconsistent with the law and disturb the peace or disrupt public utilities or services the compulsory operation of which is established by law, or which harm a vital industry, shall constitute an offence and be liable to imprisonment (presidio) or confinement to a specific place in the territory (relegación) (under the terms of section 32 of the Penal Code, persons sentenced to the penalty of presidio are obliged to carry out work as determined by the prison regulations). Incitement or encouragement of the abovementioned unlawful forms of conduct is subject to the same penalties. The Committee also referred to various provisions of the Labour Code concerning strike procedure (sections 372, 373 and 374) and the exercise of the right to strike (sections 381, 384 and 385), which restrict the exercise of the right to strike and are the subject of comments by the Committee regarding the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee previously noted in particular that the definition of services in which strikes may be banned under section 384 and the list of enterprises in which workers may not strike – drawn up every year by the government authorities – are too broad and go beyond essential services in the strict sense of the term, namely, services the interruption of which would endanger the life, safety or health of the whole or part of the population. The Committee requested the Government to take the necessary steps to amend or repeal the provisions of section 11 of the State Security Act.

The Government indicates in its report that what is punishable under section 11 is any mobilization which signifies the interruption or suspension of production, transport or basic services for the population and which would have serious consequences for the latter, with public welfare and the normal functioning of public utility services being deemed to be of greater importance than the interests of those involved in the stoppage. The Government added, however, that it was for the legislative authority to approve any amendment to the legislation in question.

The Committee notes that the Government, in its report on the application of Convention No. 87, states that it has noted the Committee’s observations and that these will be taken into account in forthcoming discussions to be held to bring the national legislation into conformity with the provisions of the Convention.

The Committee hopes that the Government will be able to provide information in its next report on the progress made in amending or repealing the abovementioned provisions with a view to bringing the national legislation into conformity with the Convention, so that the penalty of imprisonment with compulsory labour cannot be imposed for participation in strikes.

Article 1(a). The Committee notes with interest that, pursuant to Act No. 20048 of 22 August 2005, sections 263, 264 and 265 of the Penal Code, on which the Committee commented in its previous direct request, have been repealed or amended.

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The Committee notes the Government’s first and second reports.

Article 1(a) of the Convention. The Committee notes that, pursuant to section 263 of the Penal Code, anyone who by word or deed seriously insults the President of the Republic, the legislative bodies or the higher courts of justice, is liable to a penalty of "reclusión menor" and a fine. Under sections 264(3) and 265, anyone who seriously insults or threatens a senator or deputy, inter alia because of opinions expressed in Congress, a member of a court because of a judgement or a member of the State or any other authority in the performance of its duties, may be sentenced to "reclusión" and a fine. These penalties are reduced where the insults are deemed to be slight.

The Committee further notes that according to section 32 of the Penal Code, persons sentenced to the penalty of "presidio" are required to carry out work as determined by the prison regulations, and persons sentenced to a penalty of "reclusión" or "prisión" are not required to perform work of any kind. Sections 88 and 89 of the Penal Code specify that the proceeds of work done by prisoners serving a sentence of "presidio" shall go towards: (1) paying the prison for their maintenance costs; (2) improving the conditions of their detention; (3) payment of third party liability damages arising from the offence; and (4) the prisoner’s earnings. Prisoners serving a sentence of "reclusión" or "presión" are free to perform work of their own choice on their own account. If, however, they lack the means to fulfil their obligation to pay the prison for maintenance or pay the third party liability damages arising from their offence, or if they have no trade or lack any known and honest means of living, they will be required to carry out work determined by the prison until the proceeds of their work enable them to discharge the above obligations. It can thus be inferred from these provisions that persons sentenced to "presidio" are compelled to work and that persons sentenced to "reclusión" or "prisión" may in certain circumstances be subject to prison labour.

It follows from the above that breach of sections 263 and 264 of the Penal Code, cited above, could be penalized by a prison sentence involving an obligation to work. The Committee reminds the Government that Article 1(a) of the Convention, prohibits all use of forced or compulsory labour, including compulsory prison labour, as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. It requests the Government to provide information on the application in practice of sections 263 and 264 of the Penal Code so that it may assess the scope of these provisions in the light of Article 1(a) of the Convention. Please also specify the number of persons sentenced under these provisions of the Penal Code, the nature of the charges against them and the penalties imposed on them, together with copies of the relevant court decisions.

Article 1(d). The Committee notes that according to section 11 of the State Security Act, collective work stoppages, walkouts or strikes in public services or public utilities or in activities pertaining to production, transport or commerce that are carried out in a manner inconsistent with the law and disturb the peace or disrupt public utilities or services the compulsory operation of which is established by law, or which harm a vital industry, shall be treated as offences punishable by "presidio" or confinement to a specific place in the territory. Incitement or encouragement to the abovementioned unlawful forms of conduct is subject to the same penalties.

The Committee refers to its direct request of 2003 on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it drew the Government’s attention to the fact that some provisions of the Labour Code concerning strike procedure (sections 372, 373 and 374) and the exercise of the right to strike (sections 381, 384 and 385) were too restrictive. The Committee expressed the view that the definition of services in which strikes may be banned under section 384, and the list of enterprises in which workers may not strike - drawn up yearly by the government authorities - are too broad and go beyond essential services in the strict sense of the term, namely, services the interruption of which endanger the life, safety or health of the whole or part of the population.

The Committee recalls that Article 1(d) of Convention No. 105 prohibits the use of all forms of forced or compulsory labour, including compulsory prison labour, as a punishment for participation in strikes. In the Committee’s view, by providing for a penalty of imprisonment which may involve the obligation to work to be imposed for participation in a strike, collective work stoppages or walkouts in public services or public utilities or in activities in production, transport or commerce which are carried out in a manner inconsistent with the law or which breach the peace or disrupt public utilities or services the compulsory operation of which is established by law, or which harm a vital industry, the provisions of section 11 of the State Security Act are contrary to this provision of the Convention. There are two reasons for this inconsistency. First, the Labour Code provisions on the exercise of the right to strike being too restrictive, as explained above, a strike could improperly be declared illegal. Secondly, the definition of the services and activities referred to in section 11 is too broad and goes beyond essential services within the strict sense of the term. In these circumstances, the Committee hopes that the Government will take the necessary steps to amend or repeal the provisions of section 11 of the State Security Act.