Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the Government’s reports.

1. Freedom of civil servants to leave the service of the State. In its previous comments, the Committee noted that section 293(1) of the Penal Code provides for penalties of imprisonment "when three or more civil servants abandon their work, even in the form of resignation, if they do so by common accord with a view to achieving a common objective". This provision is also applicable to persons who are not civil servants, but who perform work related to the public service (section 297 of the Penal Code). The Committee notes that the prohibition from resigning, as set out in the above provisions, namely under menace of imprisonment, places a constraint upon the persons concerned to continue working. In this respect, the Committee recalls that Article 2, paragraph 1, of the Convention prohibits "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". The Committee notes the Government’s statement in its report in 2000 that it will take into account the Committee’s comments in the forthcoming amendments to the legislation.

The Committee firmly requests the Government to bring its legislation into full conformity with the Convention by taking the necessary measures to amend or repeal sections 293 and 297 of the Penal Code. It requests the Government to provide information on any measures which have been taken or are envisaged in this respect.

2. Non-voluntary office or service. The Committee had noted section 107 of the Penal Code, which provides that the office or service of civil servants may be "voluntary or forced". It also noted the information provided by the Government to the effect that office or service cannot be forced, except in the case of enrolment in the army.

The Committee requests the Government to take all the necessary measures to ensure that the work which may be imposed under section 107 of the Penal Code is strictly limited to persons carrying out their military service.

3. Freedom of career members of the armed forces to leave the service of the State. In a previous comment, the Committee had noted Legislative Decree No. 23 of 1979 and Legislative Decree No. 16 of 1977 governing respectively the service of rank and file members of the armed forces and officers.

The Committee had noted that section 6 of Legislative Decree No. 23 of 1979 provides that rank and file members of the armed forces incorporated into the defense forces undertake to complete a minimum service of three years during which they do not have the right to resign. Under sections 92 and 47(a), such members of the armed forces who submit their resignation are not entitled to leave their work until the resignation is accepted, under penalty of disciplinary sanctions imposed by the commanding officer or military tribunals (section 49(a) and (b)). The Committee notes that under section 50 the commanding officer may impose a period of imprisonment not exceeding three months or detention not exceeding 14 days as a disciplinary measure.

The Committee had noted that, in accordance with Legislative Decree No. 16 of 1977, similar provisions apply to officers. Section 4 provides that officers undertake to serve in the defense forces for an uninterrupted period of 15 years, during which they do not have the right to resign. Under section 123, any officer who submits a resignation is not entitled to leave work before it is accepted.

The Committee notes that, in the event that the resignation is refused by the competent authority, the soldier or officer is obliged to continue in service. In this respect, the Committee wishes to recall that persons who have voluntarily entered into an engagement cannot be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice.

The Committee also notes that, in addition to the minimum period of three years during which rank and file members of the armed forces do not have the right to resign, and the minimum period of 15 years in the case of officers, an extension may be envisaged if the commanding officer so decides for rank and file members of the armed forces and for officers, in the form of an additional period considered to be effective compulsory service. The Committee requests the Government to provide additional information concerning the extensions of service envisaged under section 6 of Legislative Decree No. 23 of 1979 and section 4 of Legislative Decree No. 16 of 1977, with particular reference to the conditions governing effective compulsory service.

With regard to the possibility for career members of the armed forces to resign, the Committee requests the Government to indicate the reasons for which resignation may be refused.

4. The Committee also notes the information provided by the Government in reply to its observation of 2000 to the effect that sections 324 to 330 of the Penal Code make it a criminal offence and punish the fact of living off the proceeds of the prostitution of another person.

5. The Committee requests the Government to attach to future reports copies of any laws or regulations respecting the performance of work in the event of national emergencies adopted under article 13(c) of the Constitution of 14 February 2002.