Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation on the following matters:

1. Freedom of persons in the service of the State to leave their employment. Over a number of years, the Committee has been commenting on Legislative Decree No. 46 of 23 July 1974, amending section 364 of the Penal Code, under which a term of imprisonment from three to five years may be imposed for leaving or interrupting work as a member of the staff of any public administration, establishment or body or any authority of the public or mixed sector before resignation has been formally accepted by the competent authority; or evading obligations to serve the same authorities, whether the obligation derived from a mission, a scholarship or a study leave.

The Committee has noted the Government’s indications that, in practice, each worker enjoys the full right to submit a request for resignation at any time of his choosing, and the competent authority is committed to accepting the resignation, provided the continuity of the service is ensured. The Government also indicates that the amendment of the Penal Code is currently ongoing and that the Committee’s comments are being taken into account in order to bring it into conformity with the Convention. The Committee recalls that persons in the service of the State should have the right to leave the service on their own initiative within a reasonable period, either at specified intervals or with previous notice, the Committee expresses the firm hope that the necessary measures will be taken in the near future in order to bring the legislation into conformity with the Convention and the indicated practice, and that the Government will provide information on the action taken to this end.

2. Legislation on vagrancy. Over a number of years, the Committee has been referring to section 597 of the Penal Code, which provides for the punishment of any person who is reduced to seeking public assistance or charity as a result of idleness, drunkenness or gambling. The Committee recalled, with reference to paragraphs 45-48 of its General Survey of 1979 on the abolition of forced labour, that while the punishment of gambling or the abuse of intoxicating liquor is outside the scope of the Convention, the possibility to impose penalties for mere refusal to work is contrary to the Convention.

The Committee has noted the Government’s explanation in the report that the purpose of the above provision is not to impose work, but to refrain from vagrancy; but at the same time the Government indicates that the amendments of the Penal Code will accommodate the Committee’s request. The Committee reiterates its hope that the necessary measures will soon be taken with a view to clearly excluding from the legislation any possibility of compulsion to work, either by repealing section 597 or by limiting its scope to persons engaging in illegal activities, so as to bring legislation and practice into conformity with the Convention.

3. Article 2(2)(d) of the Convention. In comments it has been making since 1964, the Committee has pointed out that certain provisions of Decree No. 133 of 1952 with respect to compulsory labour, particularly those of Chapter I (compulsory labour for purposes of health, culture or construction) and sections 27 and 28 (national defence work, social services, road work, etc.), provide for the call up of inhabitants for periods of up to two months, in circumstances that go beyond the exception authorized by the Convention, for "any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity ... and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population".

The Committee has noted the Government’s indication that the Civil Defence Law, which was intended to repeal Decree No. 133 of 1952, has not yet been promulgated. The Government also states that the Law on Local Administration promulgated by Legislative Decree No. 15 of 11 May 1971 does not contain provisions similar to those in the above sections 27 and 28 of Decree No. 133. It reiterates that the Committee for Consultation and Tripartite Dialogue set up to examine the Conventions and the Committee of Experts’ comments is responsible for the formulation of amendments to the various texts with a view to bringing them into conformity with the Conventions.

The Committee expresses the firm hope that the necessary measures will at last be taken to formally repeal or amend the above provisions of Legislative Decree No. 133 of 1952 so as to limit the possibility of exacting labour to situations of emergency as defined in the Convention, and that the Government will soon be in a position to report on the measures taken to this end, either through the adoption of the draft Civil Defence Law referred to above, or through some other action taken as a result of the deliberations of the Committee for Consultation and Tripartite Dialogue. Please also supply a copy of the Law on Local Administration promulgated by Legislative Decree No. 15 of 11 May 1971, to which reference has been made in the Government’s report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.