Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Freedom of persons in the service of the State to leave their employment (Articles 1, paragraph 1, and 2, paragraph 1, of the Convention)

1. In its previous comments, the Committee noted the provisions of sections 88-90 of Act No. 61-33 of 15 June 1961, issuing the general conditions of service of public servants, under the terms of which the written resignation of a public servant has to be accepted within one month by the authority vested with the power of nomination and only comes into effect on the date determined by that authority. In the event of refusal, the person concerned may appeal to the joint administrative commission. If the public servant leaves her or his functions before the date that is determined, she or he may be subject to a disciplinary penalty and, where appropriate, a deduction from the first payments received as a pension. The Committee notes that the Government has indicated on several occasions that, in practice, resignations are accepted and that these provisions were intended to cover public servants for whom the State had borne the expense of their training.

The Committee recalls that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law and is thus incompatible with the Convention. All persons in the service of the State must therefore be able to leave the service at their own initiative within a reasonable period, either at specific intervals or with previous notice. The Committee would be grateful if the Government would continue to provide information in future reports on cases in which the administrative authority refuses resignations by public servants and, where appropriate, the criteria used to justify such refusal, in the case of public servants for whom the State has not borne the expense of their training.

2. With regard to public servants for whom the State has borne the expense of their training, the Committee notes that, under sections 12(11) and 16 of Decree No. 77-429, as amended up to 31 December 1987, establishing the organization of the National School of Administration and Magistrates, 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. The Committee recalls that persons who have benefited from training at the expense of the State should be able to leave the service at their own initiative within a reasonable period, in proportion to the length of the studies financed by the State, or based on the proportional reimbursement of the cost incurred by the State. In view of the length of the commitment to serve the State envisaged in Decree No. 77-429 (15 years), such an obligation, in so far as it is enforced by the menace of any penalty, may have a bearing on compliance with of the Convention. The Committee therefore requests the Government to provide information on the manner in which, in practice, public servants who have benefited from such training may resign during the 15-year period following the completion of their studies and, where appropriate, the financial reimbursement required.

The Committee also noted that, under sections 11 and 13 of Decree No. 84-501 of 2 May 1984 on the organization and operating rules of the Military Health School, trainees accepted by the School undertake to serve the State for a period equal to that of their studies, supplemented by ten years. In the event of the unilateral rupture of this commitment, they undertake to reimburse their subsistence expenses, without prejudice to other penalties envisaged by law. The Committee would also be grateful if the Government would provide information on the manner in which these provisions are applied in practice, including the manner in which the reimbursement of training expenses is calculated and, as appropriate, the nature of the penalties imposed. More generally, the Committee requests the Government to ensure that persons in the service of the State, including those who have benefited from training, are able to leave their employment freely under the conditions referred to above (notice, proportional reimbursement), as the Committee does not have at its disposal all the texts on the organization of training schools for persons in the service of the State.

Article 2, paragraph 2(c). Prison labour

1. Prisoners hired out to private enterprises and individuals. In its previous comments, the Committee recalled that, under Article 2, paragraph 2(c), compulsory prison labour, to be excluded from the scope of the Convention, has to be a consequence of a conviction in a court of law; it has to be carried out under the supervision or control of a public authority; and the detainee must not be hired to or placed at the disposal of private individuals, companies or associations. However, the Committee has considered that work by prisoners for private enterprises or individuals may not be considered to be incompatible with the Convention where such work is carried out under conditions approximating a free employment relationship. This implies that such work must be subject to the consent of the prisoners concerned and that such consent must be corroborated by conditions of employment approximating those of a free employment relationship.

The Committee notes Decree No. 2001-362 of 4 May 2001 with respect to procedures for the implementation and organization of penal sanctions, supplied by the Government. It notes that work is compulsory for all persons convicted to prison sentences for acts qualified as crimes or common law offences. Work by prisoners includes, under the terms of section 38 of this Decree, labour within the prison, which may be hired to private individuals, or labour outside prison premises, either at the request of and for the account of public services and establishments, or the hiring of labour to private individuals, or on public sites. The Committee notes with interest that labour cannot be hired to private individuals, companies or associations without the consent of the prisoners concerned (section 32).

In view of the above, the Committee would be grateful if the Government would indicate whether, in practice and in accordance with the provisions of the legislation, work by prisoners is carried out for the benefit of private uses of their labour (private individuals or companies), either within or outside prison establishments. If so, the Committee requests the Government to provide information on the nature of these private uses of prison labour and the kind of work carried out for their account. Please also indicate the scales setting the amount which has to be paid by such private operators and the manner in which prisoners are paid for the work performed.

2. Work for the benefit of society. The Committee notes that the Penal Code and the Code of Penal Procedure were amended in 2000 by Act No. 2000-38 and Act No. 2000-39 of 29 December 2000, respectively. This reform introduced into the Senegalese judicial system the position of judge on the application of sentences and creates new penalties, including work for the benefit of society. Persons who are convicted (of either criminal or minor offences) may, after completing two-thirds of their sentence, be assigned to work for the benefit of society. Such unpaid work is performed for the benefit of public law associations or associations authorized to undertake works for the benefit of society, for a duration of between 40 and 240 hours. Work for the benefit of society may not be imposed in cases where the detainee refuses it or is not present at the hearing. The Committee also notes that, under sections 295-309 of Decree No. 2001-362 respecting procedures for the implementation and organization of penal sanctions, the judge on the application of sentences rules on applications for the authorization of associations. Public communities, public establishments and associations which wish to register work for the benefit of society also do so to the judge for the application of penalties with an indication of the nature and means of carrying out the works, and the number of jobs likely to be made available. The judge for the application of penalties bases her or his decision on the social utility of the works proposed and the prospects for social or vocational integration. The Committee also notes with interest that the judge for the application of penalties determines the means of carrying out the works (institutions, work to be performed, hours of work), ensures their implementation and, where necessary, visits the prisoner at the workplace.

So as to be able to assess the impact that work for the benefit of society may have on the application of the Convention, under the terms of which prisoners may not be placed at the disposal of private associations, the Committee would be grateful if the Government would provide information on the manner in which this penalty is applied in practice, and particularly on the criteria used to grant authorization to associations and the types of work undertaken by prisoners for these associations.

Trafficking in persons

The Committee notes that the Government has not provided any indications in reply to the information requested by the Committee in its general observation of 2000 relating to the measures adopted by governments to prevent, suppress and punish trafficking in persons. The Committee has received a copy of the Act to combat trafficking of persons and similar practices and to protect the victims of trafficking adopted on 29 April 2005. It notes with interest that section 1 defines trafficking of persons and provides for sentences of imprisonment of from five to ten years and for a fine amounting from 5 to 20 million francs. It also notes that the Act contains provisions with respect to the protection of victims and witnesses and in particular the possibility for victims to request to remain on the national territory temporarily or permanently as a resident or refugee.

The Committee requests the Government to provide information on the application of this Act in practice and on any other measure taken to prevent, suppress and punish trafficking of persons, as well as the difficulties encountered by the public authorities in this respect. Please refer to the Committee’s general observation of 2000.