Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the information supplied by the Government in its report.

Article 2, paragraph 2(c), of the Convention. In the comments it has been making for a number of years, the Committee has observed that, contrary to the Convention, prisoners are placed at the disposal of private enterprises and that the provisions of the Act on the execution of sentences, adopted in 1976 to bring practice into conformity with the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to employment in a workshop maintained by a private enterprise, laid down in section 41(3) of the 1976 Act, which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the budget structure, of 22 December 1981; the 1976 Act also recognises the prisoner's right to wages, but a provision for increases above the initial amount, which is 5 per cent of the average wage of workers and employees, was not given effect; finally, legislation which was to extend sickness and old-age insurance to prison labour was not adopted.

In its previous report, the Government stated its intention to fully implement the 1976 Act with regard to the inclusion of prisoners in the health and pension insurance schemes and of putting into effect a provision under which employment in workshops run by a private enterprise shall be subject to the consent of the prisoner. It also stated that a Bill to increase the remuneration of prisoners to 6 per cent of the average remuneration of workers and employees had been submitted to the Federal Parliament.

The Committee notes that in its last report the Government refers to the detailed information supplied previously to the effect that it intends in the long term to find a solution which would take greater account of the obligations deriving from Article 2, paragraph 2(c), of the Convention.

With regard in particular to the (gross) daily wage of prisoners, the Government states that it was increased between 1986 and 1990 from DM6.8 to DM7.78, which constitutes an increase of 13.4 per cent in 5 years, whereas the consumer price index only increased by 7.1 points over the same period. The rate of increase of the wages of prisoners is therefore higher than the increase in the cost of living over recent years.

The Government adds that the Bill to increase the remuneration of prisoners from 5 to 6 per cent of the average remuneration of workers and employees, which was introduced in Parliament during its eleventh legislative period, had not been definitively examined and was not submitted to Parliament during its twelfth period. The finances of the federal States are currently in a situation in which a new initiative by the federal Government would have little chance of success. This also applies to the coverage of prisoners under the sickness and old-age insurance schemes. The Government states that it would react immediately to any indications in this respect from the federal States.

The Committee notes this information. The Committee is bound to recall its previous comments in which it indicated that Article 2, paragraph 2(c), of the Convention explicitly prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law be placed at the disposal of private individuals, companies or associations. Only work performed in conditions of a free employment relationship can be held not to be incompatible with this prohibition; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the labour relationship being regarded as a free one.

The Committee considers that, in the absence of the formal consent of prisoners engaged in work, and in view of their remuneration, which amounts to 5 or 6 per cent of the national average, as well as in the absence of sickness, old-age and survivors' insurance coverage, the situation of prisoners who are made available to private enterprises is not comparable with that of the partners to a free employment relationship.

The Committee trusts that the necessary measures to ensure the observance of the Convention, which was ratified over 30 years ago, in respect of prisoners, will be taken without any further delay and the Government will report the provisions that have been adopted.