Solicitud directa (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (2002)

The Committee has noted the information provided by the Government in reply to its earlier comments. It has also noted that the new Labour Code which entered into force in July 1999 contains a provision prohibiting the illegal exaction of forced or compulsory labour which is punishable in accordance with the law (section 17).

1. Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. In its earlier comments the Committee noted that section 215-1 of the Criminal Code provides for penal sanctions for vagrancy, begging and "other parasitic ways of life". It also noted that under section 1, paragraph 2, and section 3 of the Act on Employment of Population, unemployment cannot serve as grounds for instituting administrative, criminal or other proceedings against jobless persons who are registered in the State Employment Service, looking for a job and ready to work. The Government indicates in its report that section 215-1 of the Criminal Code has not been applied in practice during the reporting period.

The Committee takes due note of these indications. Inasmuch as unemployed persons are protected from proceedings under section 215-1 only where they are ready to work, the Committee, referring to paragraphs 45-48 of its 1979 General Survey on the abolition of forced labour, must point out that the possibility to impose penalties for mere refusal to work is contrary to the Convention. Since section 215-1 does not appear to be applied in practice any more, the Committee hopes that the Government will be able to take the necessary measures with a view to clearly excluding from the legislation any possibility of compulsion to work, either by repealing section 215-1 of the Criminal Code or by limiting the scope of its provisions to persons engaging in illegal activities, so as to bring the legislation into conformity with the Convention and with the indicated practice. Pending the adoption of such measures, the Committee requests the Government to describe the criteria established for the application of this provision of the Criminal Code and to supply copies of any court decisions defining or illustrating its scope.

2. Article 2, paragraph 2(a). The Committee previously noted that under section 9(1) of the Act on the Status of Military Personnel, 1991, military servicemen, during the period of their service, may be made to perform work or other tasks not related to military service, in accordance with the procedure laid down by the President of the Azerbaijan Republic. The Government stated in its previous report, with reference to the Act on Armed Forces of the Republic of Azerbaijan (section 2) and the Constitution of the Azerbaijan Republic (articles 95 and 109), that the armed forces may be called upon to fulfil duties which do not relate to their direct obligations, following the decision of Parliament, at the request of the President of the Republic. It indicates in its latest report that the abovementioned provisions have not been applied in practice during the reporting period. The Committee wishes to recall that, under the Convention, work or service exacted by virtue of compulsory military service laws may only be excluded from the prohibition of forced labour if such work or service is of a purely military character. Referring also to paragraphs 24-33 and 49-54 of its 1979 General Survey on the abolition of forced labour, according to which the use of soldiers for non-military purposes may be permitted only in cases of emergency (such as natural disasters, or insurgency or other threats to national security), the Committee requests the Government to describe the criteria for the application of the abovementioned national provisions and to provide any information on their application in practice, if and when such information becomes available. Please also supply copies of provisions governing the procedure of calling the military to perform work not related to military service, to which reference is made in section 9(1) of the Act on the Status of Military Personnel, as well as copies of any other relevant texts.

3. Article 2, paragraph 2(c). The Committee has noted the information supplied by the Government concerning prison labour in Azerbaijan, including the information concerning conditions of work, remuneration and social security of working prisoners. It has noted, in particular, that section 49 of the Correctional Labour Code provides for an obligation of all prisoners to perform labour, such labour being performed either in the establishments belonging to the state executive penal system and in other state-owned enterprises or, on a contract basis, in enterprises based on other forms of ownership. As regards prison labour for this latter kind of enterprises, the Committee wishes to recall, referring to paragraphs 97-99 of its 1979 General Survey on the abolition of forced labour, as well as to paragraphs 122-125 of its General Report submitted to the 86th Session of the ILC (1998) and to paragraphs 82-146 of its General Report submitted to the 89th Session of the ILC (2001), that work for private companies can be compatible with Article 2(2)(c) only where prisoners work in conditions approximating a free employment relationship, which necessarily requires the voluntary consent of the prisoner as well as further guarantees and safeguards covering the essential elements of a free employment relationship. The Committee therefore requests the Government to indicate whether and how the consent of the prisoners to work for private enterprises is obtained, and what are the wages, social security and other conditions of work of prisoners working for private enterprises. Please also supply copies of contracts concluded between a company and a prison, as well as of any contracts between prisoners and a company.

4. Article 2, paragraph 2(d). The Committee previously noted the constitutional and other legislative provisions exceptionally permitting the call up of labour during a state of emergency or martial law. It asked the Government whether guarantees are provided to ensure that the power to call up labour during the state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in cases of emergency ceases as soon as the circumstances that endanger the population or its normal living conditions cease to exist. The Committee takes due note of the Government’s statement in its report that such guarantee is ensured by the high level of decision-making in emergency situations which is laid down by the Constitution and the Labour Code. Referring to the explanations provided in paragraphs 63-66 of its 1979 General Survey on the abolition of forced labour, the Committee requests the Government to provide, in its future reports, information on any cases of application of the abovementioned provisions in practice, as well as on any measures taken, in the course of possible future revision of the legislation, to make it clear from the legislation itself that the power to exact labour is to be limited to what is strictly required in order to cope with circumstances endangering the population or its normal living conditions.