Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Repetition

Article 1(1) and 2(1) of the Convention. Vagrancy. In its previous comments the Committee underlined the need to restrict the scope of sections 272 and 273 of the Penal Code defining and imposing penalties for vagrancy. Under section 272 of the Penal Code, vagrants are defined as persons who have no fixed abode and no means of subsistence and generally have no job or occupation. Under section 273(1), any person who has been officially declared a vagrant is liable by virtue thereof to imprisonment ranging from three to six months. The Committee considered that these provisions might lead to the imposition of imprisonment including the obligation to work on persons who have done nothing to disturb public order and can therefore be applied in such a way as to constitute a direct or indirect compulsion to work, which is incompatible with the Convention. The Committee notes the Government’s indication in its report that no court decision has been issued on this subject and that steps will be taken in conjunction with the Ministry of Justice to bring these provisions of the Penal Code into conformity with the Convention. The Committee takes due note of this information and trusts that the steps taken in conjunction with the Ministry of Justice will result in amendments to sections 272 and 273 of the Penal Code so that only persons who are found guilty of unlawful activity and of disturbing public order may incur penalties. The Government is requested in the meantime to continue to supply information on any court ruling issued on the basis of these provisions.

Article 2(2)(c). Prison labour hired out to private individuals. In its previous comments, the Committee noted that, under section 78 of Decree No. 247/72/PRG of 20 September 1972 concerning the establishment and structure of the prison administration and section 79 of Decree No. 624/PRG/81 of 13 November 1981 complementing Decree No. 247/72/PRG, the work of prisoners consists, apart from labour gangs in the service of the prison, of workshop activities inside the prison, and this work can be transferred under concession to individuals upon signature of an agreement with the administrative authority under the technical surveillance of the contractor’s delegate. This work can also consist of external work in the fields and on public worksites. Observing that no provision of the abovementioned Decrees provides that prison labour for private entities must be performed on a voluntary basis, the Committee emphasized the need to incorporate provisions in the national legislation which establish, firstly, the obligation to obtain formal consent from prisoners to work for private entities and, secondly, guarantees, especially regarding remuneration and occupational safety and health, indicating the existence of conditions of work which are comparable to those of a free employment relationship.

The Committee notes the Government’s indication in its report that, even though the wording of sections 78 and 79 does not appear to require the consent of prisoners in practice, the consent of prisoners is indeed necessary. Moreover, even though it is permitted by legislation, the concession of prison labour to private entities outside prisons does not occur in practice because of the lack of staff engaged in the surveillance of prisoners and because of the risk that such prisoners may be subjected to forced labour by the contracting parties. The Government explains that steps will, however, be taken in conjunction with the Ministry of Justice with a view to revising the legislation in this field.

The Committee recalls that, for the work performed by convicted prisoners for private entities either inside or outside the prison not to be considered as forced labour, it is necessary for the prisoners to have given their formal, free and informed consent to such work. In view of the particular situation in which prisoners are placed, this formal consent must also be supported by a number of guarantees, aimed at making prisoners’ conditions of work comparable to those of free workers, especially with regard to remuneration and occupational safety and health protection. In view of the above, the Committee requests the Government to indicate how the free, formal and informed consent of prisoners is obtained in practice. Moreover, since the national legislation allows the work of prisoners to be transferred to private entities, the Committee hopes that measures will be taken to ensure that, in the context of the steps taken in conjunction with the Ministry of Justice, changes may be made to the legislation to ensure its full conformity with the Convention.

Article 2(2)(d). Cases of emergency. The Committee previously referred to section 517(11) of the Penal Code, which provides that any persons who refuse or neglect to perform work or service or to lend assistance required of them in certain specific circumstances shall be liable to imprisonment and a fine. It emphasized that certain circumstances specified in this section cannot be considered cases of emergency within the meaning of Article 2(2)(d) of the Convention, particularly cases of banditry, looting, blatant criminal activity, public disturbance or judicial execution. The Committee notes the Government’s indication that the provisions of section 517(11) of the Penal Code do not apply in practice because they are obsolete and that steps will be taken in conjunction with the Ministry of Justice to review these provisions. The Committee requests the Government to supply information on the steps taken to review the provisions of section 517(11) of the Penal Code and it trusts that due account will be taken during the revision process of the Committee’s comments so that any work imposed on the population is restricted to cases of emergency within the meaning of Article 2(2)(d) of the Convention.

Article 25. Penalties. The Committee notes that section 337 of the Penal Code concerning the trafficking in persons states that anyone who concludes an agreement for the purpose of depriving another of his or her freedom, whether for financial gain or free of charge, shall be liable to imprisonment ranging from five to ten years. Moreover, securing the provision of services without remuneration, or in exchange for remuneration that is clearly not commensurate with the scale of the task accomplished, and by abusing the vulnerability or dependent situation of a person, shall be liable to imprisonment ranging from six months to five years and a fine. Finally, subjecting a person to conditions of work or accommodation which are incompatible with human dignity by abusing that person’s vulnerability or dependent situation, shall be liable to imprisonment ranging from one month to five years and a fine. The Committee once again requests the Government to supply information on the application of these provisions in practice, particularly regarding investigations and judicial proceedings instituted or rulings issued on the basis of section 337 of the Penal Code.