Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

The Committee has noted the Government’s reply to its previous direct request.

Article 2(2)(c) of the Convention. 1. Work of prisoners for private employers. In its earlier comments, the Committee referred to the national provisions allowing the law enforcement authorities to conclude agreements concerning the employment of prisoners not only with public bodies or institutions, but also with private companies (section 101(3) of Order No. 6/1996 (VII 12) of the Ministry of Justice on the implementation of provisions concerning prison sentences and detention). It noted that Law-Decree No. 11 of 1979 on the execution of prison sentences provides for an obligation of convicts to work (section 33(1)(d)). The Committee also noted that the employment-related rights of prisoners are governed by the general provisions of labour law (subject to certain deviations), but their minimum remuneration corresponds only to one-third of the general minimum wage (section 124(2) of the above Order No. 6/1996 (VII 12)) and they do not acquire pension rights under the existing legislation.

The Committee has noted the Government’s repeated statement in its reports that prisoners are in a legal relationship with a penitentiary institution and are not directly employed by a third party, and perform labour under the supervision and control of the law enforcement bodies, private parties not being able to control their labour activities. It has noted the Government’s statement that the principal goal of employing inmates is to promote their rehabilitation and reintegration into society, as well as the Government’s view expressed in the report that the work performed by convicts (including the "public utility labour") is covered by the exception provided for in Article 2(2)(c) and therefore should not be considered as forced or compulsory labour.

While having noted these views and comments, the Committee wishes to recall again that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers, even under public supervision and control.

In fact, under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are cumulative and apply independently; i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations.

The Committee again refers in this connection to the explanations given in paragraphs 128 to 143 of its General Report to the 89th Session of the International Labour Conference (2001) and in points 5 to 11 of its 2001 general observation under the Convention, where it pointed out that it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc.

Noting with interest the Government’s indication in the report that, in the course of drafting the new penitentiary legislation, a decision will be taken on the applicability to prisoners of certain social security provisions, the Committee reiterates its hope that, on the occasion of the revision of the legislation, measures will be taken, both in law and in practice, to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship, including the formal consent of the prisoners concerned, as well as - given the absence of alternative access to the free labour market - further guarantees and safeguards covering the essential elements of a free labour relationship, as referred to above. The Committee requests the Government to supply a copy of the revised penitentiary legislation, as soon as it is adopted. Pending the adoption, and noting also the recommendations concerning the conclusion of agreements between prison authorities and organizations using the labour of prisoners (Measure 1-1/17/1999.OP on the Procedural Rules of the Employment of Inmates), annexed to the report, the Committee again requests the Government to supply specimen copies of agreements concluded between prison authorities and private users of prison labour, as well as any other information concerning the work of prisoners for private employers.

2. "Public utility labour" performed by convicted persons placed at the disposal of private parties. The Committee previously noted the Penal Code provisions concerning "public utility labour". It noted that, according to section 49 of the Penal Code, public utility labour as a penal sanction is performed, without deprivation of a person’s freedom, at least one day per week, without remuneration, for a period of up to 100 days. The public utility labour may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations.

The Committee noted the Government’s indications that the work to be performed as public utility labour must be of public interest and that the employer (which may not only be a public institution, but also a private business organization) shall observe the safety provisions and ensure the same working conditions as those enjoyed by workers employed on a basis of a contract; however, public utility labour is to be performed without any remuneration.

The Committee has noted the Government’s indication in its latest report that, on the basis of the Penal Code, the convicts comply with their working obligations voluntarily and can choose freely between the two kinds of punishment. Referring to the above considerations in point 1 of the present direct request concerning the prohibition contained in Article 2(2)(c), the Committee requests the Government to indicate how the free choice between the two kinds of punishment is guaranteed and to supply copies of relevant provisions. Please also indicate whether, in the course of drafting the new penitentiary legislation, a requirement of the voluntary consent of convicts to work for a private employer is taken into account. Please also provide information on the practical implementation of special programmes for carrying out public utility labour, in accordance with government resolution 1009/2004 (II.26) Korm. referred to in the Government’s report.