Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

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.