Solicitud directa (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

1. Articles 1 (paragraph 1), and 2 (paragraph 1), of the Convention. Freedom of State employees to terminate their employment. The Committee’s previous comments on this point referred to certain provisions of the general conditions of service of public servants, as well as to certain provisions of two decrees on the organization of the National School of Administration and Magistrates and the Military Health School respectively and, in general, to public servants who have been trained in various schools of administration and whose training expenses have been borne by the State.

(a) General conditions of service of public servants. With regard to the general conditions of service of public servants, the Committee noted that, under sections 88–90 of these conditions (issued under Act No. 61-33 of 15 June 1961), public servants may resign only by submitting a written request indicating their unequivocal desire to leave the administration or service and that such resignations took effect only once accepted by the authority vested with the power of appointment, which had to respond within one month. In its first comments on this matter, in 1982, the Committee noted the Government’s statement that these provisions concerned, in particular, persons for whom the State had borne in full the expense of their training following a free commitment on their part to serve for a certain period and that, in all other cases, any resignation was accepted in practice. The Committee notes that since then, the Government has invariably indicated that cases of the resignation of public servants being refused by the competent authority are rare and even non-existent and that, in practice, public servants who have expressed the wish to terminate their employment have always been able to do so, without paying any compensation. The Government also states that this applies even to persons trained in schools of administration.

(b) Particular case of public servants trained in certain schools of administration and whose training expenses have been borne by the State. With regard to this specific category of public servants, the Committee referred to sections 12(11) and 16 of Decree No. 77-429 on the organization of the National School of Administration and Magistrates, amended by Decrees No. 84-030 of 10 January 1984, No. 84-844 of 28 July 1984 and No. 87-995 of 3 August 1987, under which candidates other than professional candidates undertake to serve the State for 15 years following the completion of their studies, the duration of which is two years. It also referred to sections 11 and 13 of Decree No. 84-501 of 2 May 1984 on the organization and operating rules of the Military Health School, under which trainees accepted by the school undertake to serve the State for a period equal to that of their studies, plus a further ten years. In its report received in 2006, the Government acknowledged that, even if their resignation was always accepted in practice, in the event of such resignation, these public servants nonetheless had to reimburse the amounts paid for their training in proportion to the remaining period for which they had initially committed themselves to serving the State. The Government also specified that no penalties were imposed on them. In its last direct request, the Committee requested the Government to continue providing statistical information on cases in which public servants have resigned before the end of their period of service to the State and on those which have led to the payment of a financial reimbursement, indicating the manner in which this reimbursement was calculated. The Committee notes that, in its latest report received in August 2008, the Government indicates that these statistics are not available since cases in which public servants have resigned before the end of their period of service to the State are very rare.

The Committee takes due note of this information. It requests the Government to provide information on any changes in practice.

2. Article 2, paragraphs 1 and 2, subparagraph (c). Prison labour. Prisoners hired out to private enterprises and individuals. In its previous comments, the Committee requested the Government whether, in practice and in accordance with the provisions of section 38 of Decree No. 2001-362 of 4 May 2001 on procedures for the implementation and organization of penal sanctions, work by prisoners is carried out for the benefit of private operators (private individuals or companies), either within or outside the prison. The Committee notes the information provided by the Government in its latest report that statistics are available only on cases of prisoners being hired out to private individuals to carry out work outside the prison. The Government indicates that out of 191 prisoners hired out for this work, only 15 carried out work for the benefit of private entities, mainly natural persons, while the others carried out work for a catholic mission and a bakery. With regard to the remuneration of the prisoners, the Government refers to section 81 of Decree No. 2001-362.

Referring to paragraphs 59 and 60 of its 2007 General Survey on the eradication of forced labour, the Committee recalls that, provided the necessary safeguards exist to ensure that prisoners offer themselves voluntarily without being subjected to pressure or the menace of any penalty, such employment does not fall within the scope of the Convention. It also recalls that, while the formal consent of the prisoner concerned, free of any pressure or menace, is essential for the work concerned not to be regarded as forced labour within the meaning of the Convention, this consent is not sufficient to eliminate the possibility that it is given under the menace of the loss of a right or advantage. The Committee also considered that in assessing whether prison labour for private entities is voluntary, conditions approximating a free labour relationship are the most reliable indicator of the voluntariness of labour.

With regard to the consent given by prisoners to work for a private employer, the Committee notes that section 32 of Decree No. 2001-362 provides that work is compulsory for all persons sentenced to imprisonment for acts qualified as common law offences or crimes, but that prison labour cannot be hired to private individuals, companies or associations without the consent of the prisoners concerned.

As to the existence of conditions approximating a free labour relationship, the Committee notes that Decree No. 2001-362 contains provisions under which the working conditions of prisoners placed with private entities shall be similar to those prevailing in the free labour market. It notes in particular that, under section 81 of the Decree, prisoners admitted to the external placement and day-release schemes shall receive a remuneration equal to the wages and wage supplements of free workers in the same category carrying out the same work in the same place. With regard to prisoners working inside the prison, the Committee notes that, under section 47 of the Decree, any agent or beneficiary of prison labour shall pay a fee which does not represent a wage and that such rate shall be set jointly by the minister responsible for the prison service and the Finance Minister. The Committee also notes that, under section 51 of the Decree, the provisions of the laws and regulations on the health and safety of workers, as well as the specific regulations on the prevention and compensation for industrial accidents and occupational diseases are applicable to prison labour.

The Committee requests the Government to provide information on the manner in which the consent of prisoners is obtained to work for the benefit of private individuals, companies or associations, as required under section 32 of Decree No. 2001-362 of 4 May 2001, indicating in particular, whether that consent is given in writing. It also requests the Government to indicate the steps taken to ensure the free nature of that consent, including the existence of conditions enabling prisoners to accept the work on their own free will, without the menace of any penalty, including the loss of a right or privilege (advantage). The Committee also requests the Government to provide information on the rate of the fee mentioned in section 47 of Decree No. 2001-362 which has to be paid by agents or other beneficiaries of prison labour, as well as the elements allowing a comparison between the remuneration of the prisoners concerned and that of free workers in the same sector. Finally, the Committee requests the Government to continue providing information on cases of prison labour being hired out to private entities, indicating the nature of such entities as well as the type of work carried out. Please also provide information on the number of prisoners concerned specifying whether, in practice, prisoners work for private entities inside prisons.

Community work. In its previous comments, the Committee noted that the amendments made in 2000 to the Penal Code and the Code of Criminal Procedure have introduced an alternative sentence to imprisonment: work for the benefit of the community (consisting in unpaid work performed with his consent by a convicted person who has completed two-thirds of his sentence, for the benefit of public associations or associations authorized to undertake works for the benefit of the community (see sections 44-3 et seq. of the Penal Code)). While noting that the judge responsible for the execution of sentences rules on applications for the authorization of associations, determines the means of carrying out the work, ensures that the work is performed and, if necessary, visits the convicted person at his workplace, the Committee requested the Government to provide information on the criteria used to grant authorization of associations and on the types of work undertaken by prisoners for these associations. In reply, the Government indicated that such a sentence had not yet been handed down by the courts, since the external follow-up committees responsible for the enforcement of this type of penalty were not operational. It also emphasized that it was for the judge responsible for the execution of sentences alone to assess the possibility of granting authorization to an association to benefit from community work but that, in practice, no application for authorization had been submitted since the associations had not been informed of that possibility. While noting the information provided by the Government in its latest report that no sentence of work for the benefit of the community has been handed down to date by the Senegalese courts, the Committee requests the Government to indicate in its future reports whether the courts have handed down any sentences of such nature and, if so, to provide information on the criteria used by the judge to grant authorization to associations which request it.

3. Articles 1 (paragraph 1), and 2 (paragraph 1). Trafficking in persons. In its previous comments, the Committee requested the Government to provide information on the application in practice of Act No. 2/2005 on combating the trafficking of persons and similar practices and the protection of victims, of 29 April 2005, together with information on any other measures taken to prevent, suppress and punish the trafficking of persons and details of any difficulties encountered by the public authorities in this regard. The Committee’s previous comments also referred to a study, due to be carried out in 2006, aiming at developing the reference information by providing precise data on the trafficking in women, in order to allow the extent, nature and complexity of the trafficking phenomenon in Senegal to be assessed. The Committee notes that, in its latest report, the Government indicates that the study concerned has not yet been carried out. It notes the information provided by the Government that a national action plan on combating the trafficking of persons, in particular the trafficking in women and children, was drawn up in June 2008 and submitted to the Minister of Justice for adoption. The Committee also notes the information provided concerning measures to raise the awareness of the population and to train professionals, especially judges and members of the security forces. It notes the information that no cases relating to trafficking in persons have been referred to the Office of the Public Prosecutor. The Committee notes, however, that the Global Report on Trafficking in Persons published by the United Nations Office on Drugs and Crime (UNODC) in February 2009 indicates that investigations were opened and a number of persons arrested between 2003 and 2006 for crimes or offences related to trafficking. The Committee requests the Government to provide up to date information in its next report concerning the action taken to combat trafficking, in particular on the follow-up to the national action plan, the results of any study carried out in this area, as well as any court decisions handed down in accordance with Act No. 2/2005 on combating the trafficking in persons and similar practices and the protection of victims. If applicable, please provide a copy of the relevant court decisions.