Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes with interest that the constitutional rights and guarantees that had been suspended by Decree No. 245 concerning the state of emergency have been restored since August 1987.

1. Article 1(a) and (d) of the Convention. In previous comments, the Committee has referred to section 523 of the Penal Code, under which an incommutable penalty of from six months to two years of imprisonment is inflicted on any person who organises or belongs to communist parties, parties with another name that support the same or similar ideas or any other internationally organised party, and on any person who assists or participates in the activities of the parties referred to, with assemblies, meetings and the preparation, printing, introduction and distribution of any kind of propaganda in the country. Under subsection 3 of section 523 the same penalty can be imposed on any person who co-operates or in any way encourages the continuation of a strike that has been declared illegal. The Committee has also referred to sections 224, 225(3), 314 and 320 of the Labour Code that impose restrictions on the peaceful exercise of the right to strike, restrictions that are enforceable, under section 523 of the Penal Code, with penalties of imprisonment.

The Committee has also referred to sections 227 and 228 of the Labour Code relating to the prohibition of strikes in the public service and the essential services.

The penalty of imprisonment involves the obligation to work by virtue of section 61(2) of the Penal Code.

The Committee takes note of the Government's statement that since the triumph of the Sandinist people's revolution, actions constituting a violation of section 523 are no longer offences and that even the Council of State includes representatives of communist or Marxist parties.

The Government adds that there are proposals to reform the Penal Code, which include the repeal of provisions such as section 523.

The Committee hopes that section 523 of the Penal Code will be repealed shortly so as to dispel any uncertainty as to its application and thus to bring national legislation into conformity with the Convention, so that positive law reflects the existing practice described by the Government.

2. In earlier comments, the Committee referred to section 4(b) of the Act on the maintenance of public order and security (Decree No. 1074), which provides for penalties of imprisonment and public works to be imposed on those who disseminate, by speech or by writing, proclamations or manifestos against security and national integrity, public safety and the national economy, the defence of public order and the prevention of crime, and the legitimately established authorities.

The Committee noted that the penalty of public works provided for in this section had been abolished by a Decree of 3 November 1983. The Committee none the less observed that if the sentence of imprisonment involves compulsory labour, as stated by the Government in one of its reports, section 4 of Decree No. 1074 was still incompatible with the Convention.

The Committee notes that in its last report, the Government indicates that since the penalty of public works has been abolished, the means of imposing compulsory labour has now been eliminated from the penal legislation.

The Committee recalls that, under Convention No. 29, forced or compulsory labour means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily; and that States that have ratified Convention No. 105 are under the obligation not to make use of any form of forced or compulsory labour as a punishment for holding or expressing political views.

The Committee observes that the penalty of imprisonment provided for in section 4(b) of Decree No. 1074, which involves compulsory labour, is compatible with the Convention if applied to persons expressing certain political opinions or views. The Committee therefore asks the Government to re-examine the above provision in the light of the Convention, to take the necessary measures to ensure compliance with the Convention and to report on the progress made in this connection.