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

The Committee takes note of the Government’s first and second reports. It requests the Government to supply further information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes with interest the adoption of the new Labour Code in 2003 and Act No. 35/2004 of 29 July. The Committee also notes the adoption of the Plan for the Elimination of Exploitation of Child Labour (PEETI) in 1998, with the support of the National Council against the Exploitation of Child Labour, and the participation of workers’ and employers’ organizations (Council of Ministers Resolution No. 75/98 of 4 June). According to the Government’s report, the PEETI was created with the function of conceiving and proposing to the Government a set of measures capable of preventing child labour and removing children, through education and training programmes, from engagement in child labour. The Committee requests the Government to continue to provide information on the implementation of these measures as well as their impact on securing the prohibition and elimination of the worst forms of child labour.

Article 3. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children. (i) For sexual exploitation. The Committee notes that under the terms of section 176(2) of the Penal Code, the trafficking in minors under the age of 16 years, for the purpose of sexual exploitation in other countries, is a crime. The Committee observes that section 176(2) covers minors "under the age of 16 years". It recalls that by virtue of Article 3(a) of the Convention, the sale and trafficking of children is prohibited for children "under the age of 18 years". Consequently, the Committee asks the Government to take the necessary measures to prohibit the sale and trafficking of children "under the age of 18 years". The Committee also asks the Government to indicate if the national legislation prohibits the sale and trafficking of children under the age of 18 years from another country to Portugal. If there is no legislative prohibition, the Government’s attention is drawn to Article 1 which requires immediate measures to secure the prohibition of this form of child labour as a matter of urgency.

(ii) For labour exploitation. The Committee observes that there appear to be no legal provisions that specifically prohibit the sale and trafficking of children less than 18 years of age for labour exploitation in Portugal. Consequently, it requests the Government to indicate the measures taken to secure the prohibition of the sale and trafficking of children less than 18 years of age for labour exploitation, in conformity with Article 3(a) of the Convention. If there is no legislative prohibition, the Government’s attention is drawn to Article 1 which requires immediate measures to secure the prohibition of this form of child labour as a matter of urgency.

2. All forms of slavery or practices similar to slavery, such as debt bondage, serfdom and forced or compulsory labour. The Committee notes that according to section 154 of the Penal Code, it is an offence to force another person to do or not do something, or to maintain an activity, by means of violence or of threat. It also notes that by virtue of section 159 of the Penal Code it is prohibited to: (a) reduce another person to the state or condition of slavery; or (b) transfer ownership of, sell or buy, a person with the intention of keeping that person in the situation of slavery.

3. Compulsory recruitment of children for use in armed conflict. The Committee notes that under section 1(4) of Act No. 174/99 on military service, military service in peacetime is based on voluntary recruitment. However, subsection (5) of section 1 provides for the obligations of Portuguese citizens concerning military recruitment. According to section 1(6), the period when citizens are subject to compulsory military service under subsection (5) runs from the first day of the year when the age of 18 is reached to the last day of the year in which the age of 35 is reached.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that section 170 of the Penal Code punishes anyone who professionally or for gain promotes, encourages or facilitates the prostitution or the practice of serious sexual acts by another person. It also notes that according to section 176(1) of the Penal Code, it is an offence to promote, encourage, or facilitate the prostitution of minors between 14 and 16 years of age. The Committee recalls that under the terms of Article 3(c) of the Convention, the use, procuring or offering of a child "under the age of 18 years" for prostitution is prohibited. The Committee therefore asks the Government to indicate if section 170 of the Penal Code prohibits the use, procuring or offering of a child under the age of 18 years for prostitution. If not, the Committee requests the Government to take steps to prohibit this form of child labour in respect of 18-year-olds as a matter of urgency.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that section 172(3)(c) of the Penal Code punishes anyone who uses a child under the age of 14 years in pornographic photographs, films or recordings. The Committee observes that section 172(3)(c) covers only children "under the age of 14 years". It reminds the Government that by virtue of Article 3(b) of the Convention, the use, procuring or offering of a child under the age of 18 years for the production of pornography or for pornographic performances is prohibited. The Committee therefore requests the Government to indicate the measures taken or envisaged to prohibit the use, procuring or offering of a child "under the age of 18 years"for the production of pornography or for pornographic performances, and to adopt appropriate sanctions.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that according to section 24(i) of the Decree-Law No. 15/93 of 22 January 1993, all the penalties established under sections 21, 22 and 23 of the Decree-Law must be increased by a quarter, inter alia, if minors are used in whatever manner, in committing crimes of trafficking or other illicit activities, including the transfer or concealment of goods and products. The Committee observes that the Decree-Law does not define the term "minor". Consequently, the Committee asks the Government to indicate if the term "minor" means a child under the age of 18 years.

Clause (d). Hazardous work. The Committee notes that section 3(2)(d) of the annex to Act No. 147/99, states that a child (a person under 18 years) is in danger when forced to perform activities or work which are excessive or inadequate for the child’s age, dignity and personal situation, or prejudicial to the child’s education or development. The Committee also notes that section 60(2) of the Labour Code of 2003, establishes the principle that the engagement in work detrimental to the physical, psychological or moral development of minors is prohibited or regulated by special legislation. Moreover, sections 116-121 of Act No. 35/2004 of 29 July, regulating the new Labour Code of 2003, include detailed provisions concerning activities, processes and conditions of work that are prohibited for minors. The Committee observes that neither the new Labour Code nor Act No. 35/2004 defines the term "minor". It consequently requests the Government to indicate whether the prohibition of hazardous work, under section 60(2) of the Labour Code of 2003 and under sections 116-121 of Act No. 35/2004 of 29 July, covers minors under 18 years of age, in accordance with Articles 2 and 3(d) of the Convention.

Article 4, paragraph 1. Determination of hazardous work. The Committee notes that sections 116-121 of Act No. 35/2004 of 29 July determine the types of hazardous work prohibited for minors. The prohibitions cover various elements, and include work activities, procedures and conditions entailing exposure to the following: activities such as animal slaughterhouse (section 116); physical agents like ionizing radiation (section 117), biological agents (section 118), chemical agents (section 119) like the ones that are classified generally in Portugal as being toxic, very toxic, explosive, extremely flammable or harmful, this item encompasses a wide range of chemical products. Section 120 of the Act No. 35/2004 further prohibits a minor to engage in such processes as the handling of strong acid and explosives. Section 121 enumerates various conditions of work that are prohibited for a minor, such as work where there is a risk of falling; handling of equipment for the production, storage or use of gases in compressed, liquid form or solutions; transport, driving or operations with vehicles, in particular tractors and earth-levelling or moving machines; work involving the release of free silica dust, in particular the use of sand-blasting equipment; pouring of molten metals; glass-blowing; work with buckets, tanks, reservoirs, flagons, or bottles containing classified chemical agents; work on airport runways; work in nightclubs. The Committee notes that the Labour Code also includes provisions setting conditions for minors concerning maximum hours (section 62); prohibition of overtime (section 64); restriction of night work (section 65) and rest period (sections 66-69).

The Committee asks the Government to indicate if, in determining the types of hazardous work, whether consultations with the employers’ and workers’ organizations were held in conformity with the provisions of this Article.

Paragraph 2. Identification of hazardous work. The Committee notes that the Government has provided no information with regard to this paragraph. It draws the Government’s attention to Article 4, paragraph 2, of the Convention according to which the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of work determined as hazardous exist. The Committee requests the Government to provide information on the measures taken to identify where the types of work so determined exist.

Article 5. Monitoring mechanisms. 1. Police. The Committee notes the Government’s indication that the criminal police authorities, the public prosecution service and the courts are responsible for enforcing the application of criminal laws on the prohibition of some of the worst forms of child labour. The Committee requests the Government to provide information on the work of criminal police authorities, the public prosecution service and the courts for the monitoring and effective implementation of the provisions giving effect to the Convention.

2. Labour inspection. The Government indicates that the Inspectorate-General of Labour is responsible for the enforcement of labour legislation and, in the case of regulatory offences, for the application of the related fines. Moreover, in the autonomous regions of the Azores and Madeira, the Inspectorate-General of Labour carries out the regional labour inspection services. The Committee takes note of the 2001 and 2002 PEETI reports, which include certain information on diagnosed cases and interventions. Moreover, referring to its observation made under the Labour Inspection Convention, 1947 (No. 81), the Committee notes with interest the intensification of inspection activities to combat child labour in collaboration with other institutions and organizations, such as the "surprise" inspections carried out since 1997 in enterprises considered at risk due to the branch of activity, the number of workers and the economic and social circumstances. It notes that the total number of "surprise" inspections increased considerably. A consultation with the social partners is envisaged with a view to revising the legislation in order to provide that young jobseekers under 18 years of age shall have completed the period of compulsory schooling and shall receive vocational training during the period covered by the employment contract. The Committee requests the Government to provide extracts or reports of inspection specifying the extent and nature of violations detected concerning children and young persons involved in the worst forms of child labour.

Article 6. Programmes of action to eliminate the worst forms of child labour. Action programmes. The Committee notes the Government’s indication that there are various legislative measures and a number of action programmes focused on the protection of children. The objectives of some are broad, but others essentially target the elimination of child labour and the protection of children’s education. The Committee requests the Government to provide more information on the action programmes adopted to detect and prevent, as a priority, the worst forms of child labour, in consultation with workers’ and employers’ organizations and taking into account the views of other concerned groups.

Article 7, paragraph 1. Penalties. The Committee notes that by virtue of section 176(2) of the Penal Code, trafficking in persons under 16 years of age also, for the purpose of engaging in prostitution in other countries, is a crime that is punishable by a prison term of one to eight years. It also notes that section 172(3)(c) of the Penal Code punishes anyone who uses a child under the age of 14 years in pornographic photographs by three years of imprisonment. Moreover, according to section 176(1) of the Penal Code, penal sanctions are imposed for some of the acts associated with prostitution; for example, promoting, encouraging, or facilitating the prostitution of minors between 14 and 16 years of age is punishable by six months to five years’ imprisonment. Under the terms of section 608(1) of the Labour Code, employing children in work prohibited to them work, which by its nature or the conditions under which it is performed, is harmful to the physical, mental or emotional development of minors, is prohibited or subject to certain conditions - it is an offence punishable by a prison term of up to two years. In addition, section 152(1) of the Penal Code specifically establishes that anyone who, having a minor working in his service, inflicts physical or mental abuse or cruel treatment, forces him/her to engage in hazardous, inhuman or prohibited activities, or subjects him/her to excessive workloads, is liable to a prison sentence of between one and five years. Under section 152(3), this sentence is aggravated in the event of serious harm to the minor’s health or the death of the minor. In such cases, the penalty is between two and eight years’ imprisonment respectively. The Committee requests the Government to provide information on how sanctions are applied in practice.

Paragraph 2. Effective and time-bound measures. Clause (a). Prevent the engagement of children in the worst forms of child labour. The Committee notes the Government’s information that the Act on the Protection of Young Persons at Risk (Act No. 147/99) and the actions carried out within the framework of PEETI contribute to the objectives set out in clauses (a) to (d) of Article 3 of the Convention. The Committee asks the Government to provide information on the concrete actions or measures taken to prevent the engagement of children in the worst forms of child labour.

Clauses (b) and (c). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration and access to free basic education. The Committee notes the Government’s indications that the objectives of the Plan for Eliminating Exploitation of Child Labour (PEETI), are the following: identify cases of dropping out of school and child labour; make parents, teachers and the general public aware of the importance of education in preventing the exploitation of child labour; facilitate the legal employment of children through agreements with employers’ associations; link up with other projects and the organizations that drive them, such as the Support Units for Integration in Active Life (Unidades de Apoio à Inserção na Vida Activa-UNIVAS), minimum guaranteed income centres, committees, for the protection of children and young people, with the AGIR and Young Volunteers for Solidarity programmes of the Portuguese Youth Institute. The Government also indicates that, to ensure that children and young persons removed from situations of exploitation of child labour are reintegrated wherever possible in normal school courses, an Integrated Education and Training Programme is providing education and training to help children under the age of 16 years in situations of child labour to complete their compulsory education. The Committee notes the efforts made by the Government related to education. It requests the Government to provide information on the results achieved by the Plan for Eliminating Exploitation of Child Labour (PEETI) and the Integrated Education and Training Programme with regard to removing children from the worst forms of child labour, and providing for their rehabilitation and social integration.

Clause (d). Identify and reach out to children at special risk. 1. HIV/AIDS. In its concluding observations on the second periodic report of Portugal in November 2001 (CRC/C/15/Add.162, paragraphs 40 and 41), the Committee on the Rights of the Child noted the launching of the Government’s Health Education Programme to address, inter alia, HIV/AIDS. However, it remained concerned at the incidence of HIV transmission, including mother-to-child transmission, and at the high incidence of AIDS (10.4 cases per 100,000) in the state party. The Committee recommended that the Government continue to strengthen its HIV/AIDS prevention programmes, including safe sex education programmes and to increase interventions at the primary health-care level aimed at limiting mother-to-child transmission of HIV. The Committee observes that the pandemic of HIV/AIDS has consequences on child victims of AIDS and orphans who might more easily engage in the worst forms of child labour. The Committee asks the Government to provide information on the measures taken or envisaged through its national policy on HIV/AIDS to address the situation of children engaged in the worst forms of child labour.

2. Street children. In its report submitted to the Committee on the Rights of the Child in 2001 (CRC/C/65/Add.11, paragraph 552), the Government indicated that cases of trafficking in children are rare in Portugal. Isolated cases have been detected in coastal areas, where the children came from derelict backgrounds, sometimes without families. Given the particular nature of this phenomenon, there are strong reasons to suspect that the true scale of the traffic in children for the purposes of prostitution and pornography is not known. Accordingly, several non-governmental organizations (NGOs) are adopting measures for the benefit of street children, the group most targeted for recruitment for the purposes of sexual exploitation, prostitution and pornography. The Committee requests the Government to provide information on the measures organized by NGOs and their impact on protecting street children from the worst forms of child labour, and in particular, from the trafficking in children for the purposes of sexual exploitation, prostitution and pornography.

Clause (e). Take account of the special situation of girls. The Committee notes the Government’s information that the concern to take account of the special situation of girls, as potentially more exposed to risks of being involved in some of the worst forms of child labour, must be a criterion for action by public and private bodies involved in protecting children and young persons at risk. The Committee requests the Government to provide more information on the action taken by public and private bodies involved in protecting children and young persons at risk, regarding the special situation of girls.

Article 8. International cooperation and/or assistance. The Committee notes that Portugal is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. It also notes the Government’s information that it is engaged in technical activities, in particular in the area of social policies, with Portuguese-speaking African countries, and this includes a commitment to help in eliminating the worst forms of child labour. The Committee asks the Government to supply in its future reports any relevant information on international cooperation and/or assistance received to tackle the worst forms of child labour.

2. Regional cooperation. The Committee notes that the International Conference on Policies to Fight Child Labour Exploitation in Europe was held in Lisbon in February 2001, by the Portuguese Government in collaboration with ILO/IPEC. Government representatives from 22 European countries, trade unions and employers, NGOs, the Council of Europe, OECD and the European Union took part in a joint and pioneering effort to engage in global examination of the issue of child labour in Europe.

3. Anti-poverty project. The Committee notes the information provided by the Government according to which one of the objectives of the Plan for Eliminating Exploitation of Child Labour (PEETI), is to link up with other projects and the organizations that drive them, such as the anti-poverty project. The Committee requests the Government to provide more information on this anti-poverty project, in particular on any notable impact of such a project on eliminating the worst forms of child labour.

Parts IV and V of the report form. Practical application of the Convention. The Committee notes the detailed information on child labour provided by the Government. It also notes the study on the social characteristics of Portuguese families with school-age children, carried out by the Ministry of Labour and Solidarity with the support of ILO/IPEC in October 1998. The Committee notes nevertheless that the Government does not give an overview of the extent of the worst forms of child labour in the country. Consequently, the Committee requests the Government to give a general appreciation of the manner in which the Convention is applied in Portugal and any practical difficulties encountered in the application of the Convention, and also to supply copies or extracts from official documents including inspection reports, studies and inquiries and where such statistics exist, information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements, investigations, prosecutions, convictions, and penal sanctions. As far as possible such information and statistical data should include data disaggregated by sex, age group, occupation, branch of economic activity, status in employment, school attendance and geographical location.