Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes that the Government refers in its latest report to article 84(3) of the Constitution, according to which all compulsory labour is prohibited except for work performed pursuant to penal legislation. It explains that, inasmuch as the Constitution is supreme, any legislation of a lower rank which clashed with it would be tacitly repealed. The Committee considers that, in order to avoid any risk of legal uncertainty, the legislative provisions which it has identified as being contrary to the Convention should be formally repealed. The Committee therefore requests the Government to take the necessary measures towards this end, taking into account its comments formulated below.

Article 1(a) of the Convention. Imposition of prison sentences involving an obligation to work as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. Under the terms of Act No. 19/91 on the security of the State, illegal activities intended to modify institutions of the State (section 15) and the offences of defaming, slandering and insulting the President of the Republic, members of the Government, High Court judges or members of the Constitutional Council (section 22) are punishable by prison sentences. Referring to these provisions, the Committee recalled that the Convention prohibits any recourse to forced or compulsory labour, including compulsory prison labour, as a punishment for persons who, without resorting to violence, hold or express certain political views or views ideologically opposed to the established political, social or economic system.

In so far as, firstly, under sections 15 and 22 of the Act, activities likely to fall within the scope of the Convention could be punishable by a prison sentence and, secondly, persons sentenced to imprisonment are compelled to work, the Committee requests the Government to continue indicating in its reports whether individuals have been sentenced under the provisions of the Act. Please provide, where appropriate, a copy of the court rulings handed down which, by illustrating the type of activities which may be punished, will allow the Committee to evaluate the scope of these provisions in practice and their conformity with the Convention.

Article 1(a) and (b). While noting that the Government already indicated previously that it had become obsolete, the Committee reiterates the need to repeal formally the Ministerial Directive of 15 June 1985 on the evacuation of towns, under which persons identified as “unproductive” or “anti-social” may be arrested and sent to re-education centres or assigned to productive sectors.

Article 1(b) and (c). Imposition of prison sentences involving an obligation to work for the purposes of economic development and as a means of labour discipline. For many years the Committee has been emphasizing the need to amend or repeal the provisions of Act No. 5/82 of 9 June 1989 concerning the defence of the economy. This Act provides for the punishment of behaviour which, directly or indirectly, jeopardizes economic development, prevents the implementation of the Plan or is detrimental to the material or spiritual well-being of the population. Sections 10, 12, 13 and 14 of the Act prescribe prison sentences involving compulsory labour in repeated cases of failure to fulfil the economic obligations set forth in instructions, directives, procedures, etc., governing the preparation or implementation of the National Plan. Section 7 of the Act penalizes unintentional behaviour (such as negligence, the lack of a sense of responsibility, etc.) resulting in the infringement of managerial or disciplinary standards.

The Government previously indicated that Act No. 5/82 concerning the defence of the economy and Act No. 9/87 amending it were repealed by the Assembly of the Republic on 21 March 2007. The Committee noted, however, that on 20 June 2007 the Constitutional Council declared the law adopted by the Assembly repealing Acts Nos 5/82 and 9/87 to be unconstitutional, considering that the blanket repeal of these Acts would have the effect of no longer criminalizing or punishing certain behaviour that jeopardizes economic development which are not punishable by other legislative texts, thereby leaving a legal vacuum. The Committee hopes that the Government will take all the necessary steps to repeal the provisions of Act No. 5/82 concerning the defence of the economy, as amended by Act No. 9/87, which are contrary to the Convention.

Article 1(d). Penalties imposed for participation in strikes. The Committee notes that, under section 268(3) of the new Labour Act (Act No. 23/2007), striking workers who violate the provisions of section 202(1) and section 209(1) (obligation to ensure a minimum service) face disciplinary penalties and may incur criminal liability, in accordance with the general legislation. The Committee requests the Government to indicate the nature of the penalties imposed on striking workers in cases where they incur criminal liability and the provisions of the general legislation applicable in this regard.

Process of reforming the penal legislation. Noting that a draft Penal Code dating from 2006 is available on the Government’s website, the Committee requests the Government to indicate the progress made regarding the adoption of the new Penal Code and to provide a copy of the text when it has been adopted. It also requests the Government to send a copy of the legislation regulating prison labour and to indicate whether this legislation is also due to be revised.