Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Abolition of Forced Labour Convention, 1957 (No. 105) - Azerbaijan (Ratification: 2000)

Other comments on C105

Observation

2022
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The Committee notes the observations of the Azerbaijan Trade Unions Confederation (ATUC), received on 13 May 2022, the International Organisation of Employers (IOE), received on 25 August 2022, and the International Trade Union Confederation (ITUC), received on 1 September 2022. It also notes the detailed discussionthat was held by the Committee on the Application of Standards (the Conference Committee) at the 110th Session of the International Labour Conference (June 2022), regarding the application of the Convention by Azerbaijan, as well as of the Government’s report.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted the indications by a significant number of United Nations and European institutions and bodies on the use of various provisions of the Criminal Code as a basis for the prosecution of journalists, bloggers, human rights defenders, and other persons who had expressed critical opinions. The Committee notes that the Conference Committee urged the Government to ensure, among others, that the right to hold or express political views or views ideologically opposed to the established political, social or economic system without the threat of penalties involving compulsory labour is fully respected in line with Article 1(a) of the Convention.

The Committee takes due note of the adoption by the Government of the Action Plan for 2022–23 containing various measures to address the 2022 conclusions of the Conference Committee. The Committee also notes the Government’s request for ILO technical assistance to conduct a review of the national legislation and practice to ensure the application of the Convention.

The Government further indicates that the sanctions of correctional and public works established for the violation of sections 147 regarding defamation, 169.1 on organization or participation in a prohibited public assembly, 233 on organization of group actions violating public order, and 283.1 regarding inflaming the national, racial or religious enmity of the Criminal Code do not constitute compulsory labour. In particular, according to the Government, the sanction of correctional work which represents a deduction of 5–20 per cent from the convicted person’s earnings does result in the direct involvement of a convicted person in compulsory labour. The Government also points out that the sanction of public works which consists of an obligation to perform socially useful work does not lead to the social isolation of convicted persons and should be performed considering their age, state of health and professional experience.

The Government further underlines that sections 147, 169.1, 233 and 283.1 of the Criminal Code are in line with the Forced Labour Convention, 1930 (No. 29) and Convention No. 105 as the former, in Article 2(2)(c), stipulates that “any work or service exacted from any person as a consequence of a conviction in a court of law …” shall not be considered forced or compulsory labour. In addition, the Government points out that sections 147, 169.1, 233 and 283.1 of the Criminal Code are not widely used in practice. According to the statistics of the Supreme Court of Azerbaijan, in 2021, there were approximately 32 court decisions handed down under section 147; no court decision under section 169.1; 2 court decisions under section 233; and 2 court decisions under section 283.1. The Government further indicates that, in 2021, an amnesty was applied to 17,267 convicted persons, which is the largest amnesty in terms of the number of persons covered. In addition, a number of offences were decriminalized following the legislative amendments to the Criminal Code in 2017 and 2020.

With respect to the judgments delivered by the European Court of Human Rights (ECHR) concerning the detentions and convictions of opposition political activists in Azerbaijan, the Government indicates that in several cases, the convictions have been quashed or the criminal proceedings have been terminated and compensation has been provided to the applicants.

The Committee notes the observations of the ATUC indicating its request to the ILO for technical assistance to conduct awareness-raising and capacity building activities on the application of the Convention. The ATUC further indicates that it has not received any complaints on the use of forced or compulsory labour. The Committee also notes the IOE’s observations indicating that immediate and effective steps are needed to ensure that no person who peacefully expresses political opinions or opposes the established political, social or economic system can be given a sentence involving compulsory labour or imprisonment, either in law or in practice. The Committee further notes that the ITUC expresses its disagreement with the Government’s statement that the sanction of correctional work does not amount to compulsory labour. The ITUC further indicates that despite the decriminalization of certain offences, the administrative penalties which are applied against human rights activists have increased from 15 days to 90 days of imprisonment.

With respect to sanctions of correctional work, public works and imprisonment established by sections 147, 169.1, 233 and 283.1 of the Criminal Code, the Committee notes that they involve compulsory labour for convicted persons. Regarding the sanction of correctional work, the Committee notes that convicts without a job are obliged to seek employment, including by registering with the employment agency, and cannot refuse a job offered to them (section 43 of the Code on the Execution of Penal Sentences). Convicts who have not found a job without a justified reason within a determined period of time are subject to sanctions, including the replacement of the unserved part of correctional work by the sanctions of restriction of freedom or imprisonment (section 51 of the Code on the Execution of Penal Sentences). The Committee notes in this respect that the sanction of correctional work leads to indirect coercion to perform labour under the threat of a penalty and results in compulsory labour. The Committee further observes that public works also involve compulsory labour as they consist of an obligation to perform socially useful work for a period ranging from 240 to 480 hours (section 47 of the Criminal Code). Furthermore, the sanction of imprisonment involves the obligation to perform labour, in accordance with section 95.1 of the Code on the Execution of Penal Sentences. The Committee therefore notes that sanctions of correctional work, public works and imprisonment involve compulsory labour and thus fall under the scope of the Convention.

The Committee further recalls that the exceptions from the definition of forced or compulsory labour set out by Article 2(2) of Convention No. 29 do not automatically apply to Convention No. 105. More particularly, the exemption concerning prison labour or other forms of compulsory labour exacted as a consequence of a conviction in a court of law does not apply to convicted persons sentenced to imprisonment or other punishments involving compulsory labour for expressing political views or views ideologically opposed to the established political, social or economic system within the meaning of Article 1(a) of Convention No. 105 (2007 General Survey on the eradication of forced labour, paragraph 144).

The Committee strongly urges the Government to continue to take the necessary measures to ensure that, both in law and practice, no one who, in a peaceful manner, expresses political views or opposes the established political, social or economic system can be sentenced to sanctions under which compulsory labour is imposed. The Committee once again requests the Government to review sections 147, 169.1, 233 and 283.1 of the Criminal Code by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. In this respect, the Committee requests the Government to provide information on the outcome of the review of the national legislation and practice. The Committee further requests the Government to continue to provide information on the application of sections 147, 169.1, 233 and 283.1 of the Criminal Code in practice, including any prosecutions carried out or court decisions handed down, indicating the penalties imposed and the facts that led to convictions.

The Committee is raising other matters in a request addressed directly to the Government.