Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

Article 2, paragraph 1, of the Convention. Definition of forced labour. The Committee notes the information provided by the Government in its 2002 report to the effect that the National Assembly was discussing a draft reform of the Penal Code. In the context of legislative provisions enabling effect to be given to the Convention, the Government drew attention to the provisions of section 174 (constraint and displacement). Under this section, constraining a person, using violence or intimidation, to do, not to do or to tolerate something which that person is not obliged to do, shall be liable to imprisonment of between one and three years plus a fine. The penalty is increased to between two and fours years’ imprisonment when the constraint obstructs the exercise of a right guaranteed by the Constitution, and to between two and six years when the constraint obliges a person to change domicile or residence or to abandon temporarily or permanently his place of abode. The Committee notes this provision. It has also noted the whole draft of the Penal Code - the draft being available on the National Assembly’s web site - and notes with interest that one heading is now devoted to labour law violations (Title XI of Volume II). Hence section 298 (slavery and exploitation) states that any person who subjects or reduces a person to, or keeps a person in, slavery or servitude or any other situation which violates human dignity at work is liable to imprisonment of between three and six years. The Committee hopes that it will be possible to adopt this draft in the near future and, if so, requests the Government to send a copy of it.

Article 2, paragraph 2(c). Work exacted as a consequence of a conviction in a court of law. 1. The Committee notes the adoption on 21 November 2003 of Act No. 473 on the prison system and the serving of sentences. Chapter IX of the Act is devoted to prison work and its rehabilitative function. Under section 77 of the Act, the participation of detainees in work is the fundamental component of the "prison process", the purpose of which is the social reintegration of detainees. To this end, section 77 lists a number of compulsory features of prison work. Hence, for example, the detainee’s explicit consent is required and the work must be provided as far as possible by the prison administration. However, work contracts for the provision of services may be concluded with enterprises or individuals outside the prison under the responsibility, control and supervision of the national prison system authorities. This section also provides that the remuneration of detainees depends on the type, method and characteristics of the work performed and that measures concerning the safety of detainees are the exclusive responsibility of the National Prison System Department.

In this regard the Committee reminds the Government that, under Article 2, paragraph 2(c), of the Convention, any 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, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. In this connection, the Committee would be grateful if the Government would send copies of any contracts of work for the provision of services concluded between prison administrations and private enterprises or individuals, whether the work is performed by detainees inside or outside prisons. It also requests the Government to indicate in what manner detainees give their consent to work done for a private enterprise or individual.

2. The Committee notes that section 61 of the draft Penal Code, which has already been referred to above, provides for the performance of work in the public interest. Unpaid work of this type, for the community or in the public interest, may be imposed for between ten and 90 days and obliges the convicted person to perform physical or intellectual work. The judge determines the hours and place of work (public or private establishment serving the public interest). Work for the benefit of the community is provided by the local administration, which may conclude the appropriate contracts, and must be non-profit-making. As soon as this provision of the Penal Code enters into force or if other provisions already allow the competent legal authorities to pronounce this type of sentence, the Committee requests the Government to provide more detailed information on the nature of work performed in the context of work in the general interest and on the entities for whose benefit this work is carried out. Please also send, if appropriate, a copy of any text regulating the aforementioned work.

Freedom of career members of the armed forces to leave their employment. Referring to the Committee’s previous comments concerning the possibility for career members of the armed forces to leave their employment, the Government sent a copy of the provisions of section 118 of the "normativa interna militar". Under these provisions, the member of the armed forces is in a situation of "retiro" when he ceases to serve in the army. The situation of "retiro" may occur at the request of the interested party once the application is approved by the relevant military authority. The Committee notes this information and requests the Government to indicate whether, in practice, the relevant military authority has already refused such an application and, if so, for what reasons.

Trafficking in persons. The Committee notes the information communicated by the Government in reply to its general observation on the trafficking in persons and in particular the provisions of section 203 of the Penal Code concerning the criminal offence of trafficking in persons. Under this section, anyone who recruits or enlists persons, with their consent or by recourse to threats, offers, deception or any other machination of this sort, to engage in prostitution inside or outside the country, or anyone who brings persons into the country to engage in prostitution shall be liable to imprisonment of between four and ten years. The Committee notes that this provision does not refer to the trafficking in persons in order to exploit their work but solely to the trafficking in persons in order to use them for prostitution. It notes with interest, however, that the draft Penal Code closes this loophole inasmuch as, in addition to a section specially devoted to the trafficking in persons for sexual purposes (section 193), section 460 (trade in persons) provides that any person who, on his own account or as a member of an international organization, engages in the trade in persons for whatever purpose will be liable to imprisonment of between four and eight years. The Committee hopes that this draft will be adopted soon. It requests the Government to provide information on the application in practice of the aforementioned provisions of the Penal Code and, if appropriate, of the draft Penal Code. Please indicate in particular whether legal proceedings have been instituted against persons responsible for the trafficking of persons in order to use them for prostitution or exploit their work and state any prison sentences which have been imposed.