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

The Committee notes that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. With reference to its observation on the application of the Convention in relation to prisoners working for private enterprises, the Committee draws the Government’s attention to the following points.

  1.  Absence of "menace of any penalty"

The Committee recalls that, since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. However, under the terms of section 720(1) of the Code of Criminal Procedure, work "is taken into account in assessing a convict’s reinsertion potential and good behaviour" and, under section 721(1), a reduction of sentence can be granted to prisoners detained under one or more sentences of imprisonment "where they have given sufficient proof of good conduct". A reduction in sentence may therefore depend on work activities. With reference to paragraph 21 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that it was made clear during the preparatory work for the Convention in relation to the terms "under the menace of any penalty" in the definition of forced labour provided in Article 2, paragraph 1, of the Convention, that the penalty in question need not take the form of penal sanctions, but might take the form also of a loss of rights or privileges. The fact that, under the terms of sections 720(1) and 721(1), a reduction of sentence may depend on work activities therefore calls into question the consent being freely given to work.

In this respect, the Committee notes with interest that the commission of inquiry on the conditions of detention in prison establishments in France (hereinafter "the commission of inquiry") refers in Part IV.D.1(d) of its report (page 104), to "the now automatic granting of reductions of sentence". However, the proposal made by the commission of inquiry in this respect goes in the opposite direction, namely that, "in order to encourage work by detainees, and the acquisition of experience, it would be desirable to take into account these activities in the now automatic granting of reductions of sentence". For the above reasons, this proposal undermines consent being freely given by the prisoner, and therefore compliance with the Convention, where work is performed in a workshop or prison under private management and thus does not come within the exception set out in Article 2, paragraph 2(c), for prison labour. The Committee therefore hopes that, rather than returning to the effective application of section 721(1) of the Code of Criminal Procedure, the new prison Bill that is currently being prepared will sever any link between the fact of accepting or not accepting work and prospects for a reduction of sentence, and that the Government will soon be in a position to report on provisions adopted to this end.

As to encouraging detainees to work, the Committee considers that the mandate given by section D.102(2) of the Code of Criminal Procedure (cited in point 2 below) offers potential which, judging from the report of the commission of inquiry, is far from being fully realized and which is in line with the Convention.

  2.  Conditions approximating those of a free labour relationship

With reference to points 10 and 11 of its general observation under the Convention and to paragraphs 132 et seq. of its General Report for the previous year, the Committee notes with interest that, under the terms of section D.102(2) of the Code of Criminal Procedure:

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

  (a)  Remuneration

In its report, the Government indicates that in 2000 the hourly (gross) rate of the minimum wage of the prison administration for work for hire, as set out in the contract of mixed management establishments, has been generalized to all establishments and amounts, depending on the nature of the establishments, to between 17.22 and 20 francs an hour. In this respect, the Committee also notes that, in the report of its visit to the Aix-Luynes detention centre, managed by a private contractor, namely the company GECEP, the commission of inquiry noted that in the hired workshops where detainees work for some 20 companies:

Work is remunerated at a piece-work rate, or based on a flat rate of 18 francs an hour as a minimum, which is therefore higher than the minimum wage for prisons of 17 francs an hour, a concept without legal basis put forward by the head of the private centre.

The Committee also notes that the hourly gross rate of the minimum growth wage, the statutory minimum wage ("SMIC"), which is not therefore imposed on hiring enterprises, was raised on 1 July 1999 from 40.22 francs to 40.72 francs. It also notes that the gross average remuneration of detainees working for hiring enterprises is lower than the average paid by the Industrial Board of Prison Establishments (RIEP), which is a state body.

However, the average remuneration is by far the lowest for the "general service work" intended to ensure the operation of the prison establishment, which in an establishment such as Luynes is administered by private enterprises, either as the principal manager, or as the co-contractors or the subcontractors of a co-contractor. The Committee notes with interest the proposal made by the commission of inquiry in Part IV.D.1(a) of its report to increase the remuneration of detainees employed on general service work. However, the minimum monthly amount indicated by way of illustration (1,000 francs, compared with 740 francs on average today) appears to be far from reflecting the principle set out in section D.102(2) of the Code of Criminal Procedure recalled above. The Committee also notes the Government’s indication in its report to the effect that:

For detainees engaged in general service work (the service allowing the operation of the establishment, such as catering and maintenance …), an adjustment of remuneration, covered by the operational budget of each establishment, was undertaken in the context of a new measure in 2001 and it is envisaged to continue this effort in 2002.

In the absence of any figures provided in this respect, the Committee recalls that, for the reasons set out in points 10 and 11 of its general observation under the Convention and in paragraphs 132 et seq. of its General Report the previous year, all detainees assigned to general service work who work for prison managers or other private enterprises, and who are not therefore covered by the exception set out in Article 2, paragraph 2(c), of the Convention, must receive gross remuneration approximating the levels of remuneration in occupational activities outside prisons, in the same way as detainees working for private contractors in workshops, which moreover would correspond to the principle set out in section D.102(2) of the Code of Criminal Procedure.

With regard to the level of wages of workers who are hired out, detainees, who are handicapped in their access to the labour market, may also be in competition with other persons in a situation of dependence. In this respect, during its visit to the Paris La Santé prison, the commission of inquiry noted that:

Recalling that the disabled in sheltered work centres (CAT) earned around 25 per cent of the minimum wage, the contractor met by the delegation considered that detainees were not being exploited.

In its proposals in Part IV.D.1(a) of its report, the commission of inquiry demonstrated resignation in this respect:

It would appear to be difficult to increase the remuneration of detainees employed by contractors. There would be a risk of the "disappearance" of contractors at a time when it is more than ever necessary to develop prison work. However, it would be desirable to provide detainees with wage slips.

In practice, the low level of gross remuneration (reduced still further by compensation for victims, legal expenses and alimony contributions) does not favour the development of prison work, as the commission of inquiry noted in Paris La Santé:

As a result the number of detainees who are candidates for work has been tending to fall for some years.

Over and above the important differences between the average remuneration for the different types of work available to detainees, the Committee notes from the report of the commission of inquiry extreme variations in remuneration, both between the various prison establishments and within the same establishment, not only between general service work and hired work, but also between the various contracting enterprises.

In one same establishment, gross monthly remuneration can vary between 400 and 1,400 francs for general service work and from 2,000 to nearly 10,000 francs for detainees employed by around ten contracting enterprises. In these conditions, the Committee hopes that, in accordance with section D.102(2) of the Code of Criminal Procedure, gross remuneration complying with the hourly rates of the statutory minimum wage will progressively be secured for all prisoners working for private contractors or prison managers, and that the Government will report on the measures taken to this end.

  (b)  Contracts of employment

The Committee recalls that under the terms of section 720(3) of the Code of Criminal Procedure:

The employment relations of detainees are not covered by an employment contract. An exception may be made to this rule for activities performed outside prison establishments.

Similarly, according to section D.103(2) of the Code:

The relations between the employer entity and the detainee are exempt from any employment contract: an exception is made to this rule for detainees admitted to the system of semi-freedom. This rule may also be set aside, in accordance with section 720, for detainees performing work outside prison establishments in the conditions set out in section 723(1).

In its last report, the Government indicates that the prison administration wishes to further define the employment relationship and that:

Two possibilities are now available: one, relating to the administration, in line with the objective of approximating prison work to normal law, consists of establishing an "employment document", setting out the obligations of the detainee and the prison administration and, in particular, the conditions for the conclusion and termination of the employment; the other, in prison law, consists of taking measures related to the principles of labour law, and particularly deciding on the desirability of establishing a specific employment contract, which should be based on labour law wherever there is no incompatibility with the obligations arising out of such law and those deriving from the situation of detention, or merely incorporating the necessary limits.

The Committee notes this information with interest. It therefore hopes that the new prison Bill will permit to offer all detainees working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration and operating in the manner of a temporary work agency. The Committee requests the Government to report on all provisions adopted to this end.

  (c)  Safety and health

The Committee notes with interest the Government’s statement in its report that the adaptation to the relevant rules of the machines used in the workshops administered by the prison employment service was completed in 2000. It hopes that the Government will soon be able to make the same statement for the machines used in the workshops and establishments administered by private enterprises, considered below.

Referring also to its observation in relation to the involvement of the labour inspectorate since 1999, the Committee notes with interest that the commission of inquiry observed, during its visit to the Le Mans prison, that the reports of labour inspectors "have changed things". However, the situation appears to be very uneven with regard to work premises. During its visit to the Melun detention centre:

The delegation noted that workshops, built in 1870, were operational, well lit and in accordance with safety standards, which is far from being the case in most of the prisons visited.

Similarly, in Part II.B.1(a) of its report, under the title "A generally unsatisfactory health situation", the commission of inquiry observed that:

There is in this respect a total contradiction between the "law" and practice. Indeed, the regulations of the Code of Criminal Procedure (section II, Chapter VIII, Title II) set out very precise rules concerning the volume of air, lighting, heating and ventilation of detention premises.

In its proposals contained in Part IV.D of its report the commission of inquiry links the promotion of work to safety and health:

The commission considers that prison work and training must be encouraged, even in detention centres. It is necessary for workshops to be located in premises that are ventilated, sufficiently large and which respect fire safety regulations, which requires space and improvements in old establishments.

Recalling the Government’s statement cited in its observation that the Prime Minister has committed the Government to a vast programme of renovation of prisons to achieve a substantial improvement in the conditions of detention of prisoners, the Committee hopes that the necessary measures will be taken to ensure that the normal safety and health conditions of free work are complied with in prison workplaces, and that the Government will soon be in a position to report on the results achieved in this respect.

  3.  Conclusion

The Committee notes with interest that, in the report of the commission of inquiry Mr. Guy Canivet, First President of the Court of Cassation, recalled in his hearing that:

-  the law applies in prison in the same way as elsewhere and prisons are not extraterritorial;

-  all detainees, while being detained, remain citizens.

The report of the commission of inquiry, entitled: "Prisons: A humiliation for the Republic", brought to the attention of the public grave contradictions between the law and practice, thereby encouraging a constructive rise in awareness. With regard to compliance with the international Convention, the Committee is bound to note that the development of national law and practice concerning prison work, while calling for additional developments as outlined in this request, is based on principles which give grounds for hoping that their full achievement will result in the required improvements.