Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the 1998 edition of the Penal Code supplied by the Government.

Obligation to work in prison

1.  Referring to the provisions of the Penal Code, the Committee notes that custodial prison sentences may be given in application of sections 522 and 523 for the expression of political opinions and as punishment for illegal strikes. The Committee recalls that under section 195 of the Labour Code (Act No. 185 of 30 October 1996), which concerns work in prison, persons guilty of an offence ("los reos") who agree voluntarily to work shall receive wages which shall not in any case be lower than the legal minimum for the work performed. Nevertheless, on the question of the voluntary or compulsory nature of work in prisons, the Committee notes that under section 61(2) of the Penal Code, persons sentenced to imprisonment may choose one of the forms of work organized in prisons, but only those who have sufficient resources to pay the cost of their prison stay are absolved from the obligation to work. The Committee is therefore bound to reiterate its comments on the following points.

Article 1(a) of the Convention.  2.  In the comments it has been making for over 20 years, the Committee has noted that under section 523(1) of the Penal Code a penalty of from six months to two years’ imprisonment is imposed on any person who organizes or belongs to communist parties, parties with another name that support the same or similar ideas, or any other internationally organized party. Under section 523(2), the same penalty is applicable to any person who assists or participates in the activities of the parties referred to in 523(1), such as assemblies, meetings and the preparation, printing, introduction and distribution of any kind of propaganda in the country. Referring to the explanations given in paragraphs 106-109 and 133-140 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that when the penalties imposed by section 523 can inflict the obligation to work on the convicted person, these provisions are incompatible with Article 1(a) of the Convention since they have an effect of political coercion and are directed at persons who demonstrate their ideological opposition to the established political, social or economic system. The Committee hopes that the necessary measures will finally be taken to bring the legislation into conformity with the Convention on this point and that the Government will indicate the provisions adopted to this end.

3.  In its previous comments, the Committee also referred to section 522 of the Penal Code, under which an incommutable sentence of from six months to two years’ imprisonment is imposed on any person who incites to the non‑observance of the Constitution of the State or attacks the republican and democratic regime established by it or who directly encourages such activities. Referring once again to the explanations provided in paragraphs 133-140 of its abovementioned General Survey, the Committee recalls that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. Section 522, however, is not limited to such activities but seems to apply to all those who manifest their ideological opposition to the established political system. The Committee requests the Government to indicate the measures taken or envisaged to ensure compliance with the Convention in this respect and, meanwhile, to supply information on the practical application of section 522, including copies of any court decision which illustrates the scope of this provision.

4.  Article 1(d).  The Committee notes the Government’s indication in its report to the effect that there are no penal sanctions imposed for striking. The Committee notes, however, that in the 1998 edition of the Penal Code, section 523(3) of the Penal Code has not been repealed. Under this provision any person who cooperates with or in any way incites anyone to continue a strike that has been declared illegal by the respective authorities is punishable by a sentence of imprisonment of from six months to two years. The Committee, referring to its observation in 1999 under Convention No. 87, notes that sections 389 and 390 of the Labour Code impose compulsory arbitration when, inter alia, 30 days have elapsed from the declaration of legality of the strike and that this obligation is not limited to cases laid down in section 247 of the Code (according to which the exercise of the right to strike in public services or services that are of public interest may not be extended to situations which endanger the life and personal safety of the whole or part of the population). In addition, under the terms of section 53 of the Regulation on Trade Union Associations (Decree No. 55‑97), in industrial disputes, federations and confederations shall limit their intervention to providing advice and moral and economic support required by striking workers, implying that a strike declared by a federation or trade union confederation is illegal. Referring to the explanations in paragraphs 120-132 of its abovementioned General Survey, the Committee hopes that the necessary measures will be taken in regard to section 523(3) of the Penal Code, read in conjunction with sections 389 and 390 of the Labour Code and section 53 of the Regulation on Trade Union Associations to ensure compliance with Article 1(b) of the Convention which prohibits penalties involving compulsory labour as a punishment for having participated in strikes. The Committee requests the Government to supply information on measures taken to this end.