Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1(1) and Article 2(1) and (2)(c), of the Convention. Work of prisoners for private enterprises. In comments made for many years on law and practice in Germany, the Committee referred to the situation of prisoners working for private enterprises. It noted, in particular, that such prisoners fall into two categories: (a) prisoners performing work on the basis of a free employment relationship outside penitentiary institutions; and (b) prisoners who are obliged to work, without their consent, in workshops run by private enterprises within state prisons, in conditions bearing no resemblance whatsoever to the free labour market. The Committee pointed out that the latter situation is incompatible with Article 2(2)(c) of the Convention, which expressly prohibits convicted prisoners from being hired to or placed at the disposal of private individuals, companies or associations. It also noted with regret that the requirement of the prisoner’s formal consent to be employed in a workshop run by a private enterprise, laid down in section 41(3) of the Act on the execution of sentences of 1976, was suspended by the Second Act to improve the budget structure, of 22 December 1981, and had remained a dead letter since that time.

The Committee has noted the Government’s indication in its 2006 and 2008 reports that, when work is carried out for private companies in prisons, only the material for the work is brought into the prisons by the companies, the supervision of the prisoners concerned being the sole responsibility of the prison staff. The Committee recalls in this connection that compulsory work or service exacted from any person as a consequence of a conviction in a court of law is compatible with the Convention only if two conditions are met: namely, that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The fact that prisoners remain at all times under the authority and control of the prison administration does not detract from the fact that they are “hired to” a private enterprise – a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument.

Referring to the explanations in paragraphs 59–60 and 114–120 of its General Survey of 2007 on the eradication of forced labour, the Committee points out once again that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain prisoners’ formal consent to work for private enterprises both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health. In addition, there may be also other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work and which could be considered in determining whether consent was freely given and informed (such as the learning of new skills which could be deployed by prisoners when released; the offer of continuing the work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills).

The Committee notes with regret the Government’s statement in its 2006 and 2008 reports that, in view of the overall economic situation in Germany, the federal Government has still not taken any steps to bring into force a provision for the consent of prisoners to work in private workshops, as laid down in section 41(3) of the Act on the execution of sentences of 1976, or any steps to raise prisoners’ remuneration or include them in the pension insurance scheme.

The Committee notes the Government’s indication in its latest report that, throughout the federal territory, an average of 11.61 per cent of prisoners worked for private enterprises in 2006, though figures for the Länder ranged from 2 up to 20 per cent. The Government states that the work situation in prisons is characterized by a job shortage, and the prison authorities are therefore striving to increase the percentage of private companies in prisons to bring down the number of unemployed. As regards the wages earned by prisoners working in private workshops, the Committee previously noted the Government’s view that the existing level of prisoners’ remuneration in Germany was still insufficient and that, in spite of the Federal Constitutional Court’s decision of 24 March 2002, which currently precludes the success of any policy initiatives aimed at further increasing prisoners’ remuneration, the Government would nevertheless continue to promote its view and monitor closely the budgetary situation in the Länder. The Government also expressed its intention to pursue its efforts as regards the inclusion of prisoners in the state pension schemes. As regards conditions of work of prisoners working for private enterprises, the Committee has noted from the Government’s reports that their hours of work generally correspond to the regular weekly working hours in the public service, and the statutory safety and health and accident prevention provisions are also fully applied.

While having duly noted this information, the Committee reiterates its concern that, more than 50 years after the ratification of this fundamental human rights Convention, a significant proportion of the prisoners working for private enterprises in Germany is hired to private enterprises which use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market. While noting the Government’s repeated statement in its reports that the Federal Constitutional Court has ruled that compulsory work of prisoners for private companies is compatible with the Basic Law, the Committee points out once again that, as explained above, the situation is still not in conformity with the Convention, both in legislation and in practice.

Noting the Government’s view expressed in its reports that the work of prisoners for private companies should be adapted as closely as possible to normal working conditions – so as to facilitate the prisoners’ reinsertion into working life – the Committee expresses the firm hope that the necessary measures will at last be taken, both at the federal and at the Länder levels, to ensure that free and informed consent is required for the work of prisoners in private enterprise workshops inside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as well as by other objective and measurable factors referred to above. The Committee hopes, in particular, that the provision for the consent of prisoners to work in private workshops, already made in section 41(3) of the 1976 Act referred to above, will at last be brought into operation, together with the provisions regarding their contribution to the old-age pension scheme, as foreseen by section 191 et seq. of the same Act, and that the Government will soon be in a position to report the progress made in this regard.