Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

1. Article 2, paragraph 2(c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee noted that Act No. 87-432 of 22 June 1987 had amended the Code of Criminal Procedure by requiring prison labour to be voluntary. It noted that prisoners who work may be assigned to general service for prison establishments, work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities. In the context of productive activities, work is carried out: (a) in the workshops of the Prison Employment Service (SEP), through the Industrial Board of Prison Establishments (RIEP); (b) for private enterprises hiring labour from the prison administration; or (c) in jointly managed establishments. In this latter case, the organization of productive activities is one of the functions entrusted to private enterprises in the context of operating contracts for jointly managed establishments. This organization of prison labour means that prisoners may, in practice, perform work for the benefit of a private enterprise. Although, under the terms of Article 2, paragraph 2(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that when work is performed under conditions of employment approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may not raise problems in relation to the application of the Convention. In this respect, it noted in its previous comments that the guiding principles of the legislation governing prison work respond on a number of essential points to the criteria set forth by the Committee for work performed by a prisoner for a private enterprise to be assimilated to a free labour relationship, and accordingly does not come under the prohibitions set out in Article 2, paragraph 2(c), of the Convention. The Committee however wishes to draw the Government’s attention to and be provided with further information on certain of these criteria which make it possible to approximate a free labour relationship.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that, under the terms of sections 720(1) and 721(1) of the Code of Criminal Procedure, there is a link between whether or not a prisoner agrees to work and the prospects for sentence reduction. By virtue of section 721(1), a reduction of sentence can be granted to prisoners where they have given sufficient proof of good conduct, while section 720 provides that work and vocational training are taken into account in assessing a convict’s reintegration potential and good behaviour. It drew the Government’s attention to the fact that this link could have an impact on consent being given freely to perform work. The Government indicated in this regard, in its report received in 2004, that the judge responsible for the application of sentences assesses reintegration potential and good behaviour on the basis of many criteria other than mere participation in work, such as behaviour during detention, involvement in socio-educational activities, the degree of compensation of the victims, the seriousness with which prisoners prepare their projects for after their release, the existence of family relations, etc. Moreover, there are a number of establishments in which the availability of work cannot fully satisfy the demand, which would amount to discrimination in relation to sentence reduction.

The Committee notes this information. It observes that, following the adoption of Act No. 2004-204 of 9 March 2004, section 720 became section 717‑3 and the provisions of section 721(1) were amended. Henceforth, each convict benefits from a sentence reduction credit calculated on the basis of the length of the sentence. This sentence reduction credit may be withdrawn by the judge responsible for the application of sentences in the event of bad conduct by the convict during detention. It would therefore appear that the link existing in the legislation between the acceptance of work and the right to sentence reduction has been removed. However, the Committee would be grateful if the Government would indicate whether, in practice, refusal of work may be taken into account in determining bad conduct by a prisoner.

(b) Conditions of work approximating those of a free labour relationship. The Committee recalls that, in accordance with section D102(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 work under free conditions. In this context, the Committee would be grateful if the Government would provide additional information on the following points relating to the remuneration of prison labour and the existence of an employment contract when work is performed for the benefit of private enterprises.

Remuneration

In its previous comments, the Committee emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments are not covered by the exception provided for in Article 2, paragraph 2(c), of the Convention, and should therefore receive gross remuneration approximating the levels of remuneration in the same activities performed outside prisons. The Committee notes the detailed information provided by the Government in its reports received in 2004 and 2006 concerning the adjustment of remuneration of prisoners engaged in general service work. According to this information, remuneration will be adjusted each year on the basis of changes in the minimum interoccupational growth wage (SMIC) and, between 2002-06, the average daily remuneration of prisoners assigned to general service work increased by around 20 per cent (20.3 per cent for category I, 18.5 per cent for category II and 19.2 per cent for category III). The Government adds that it remains appropriate to determine a minimum amount by category below which no remuneration could be paid.

With regard to general service work in jointly managed prison establishments, the Government indicates in its 2004 report that, since January 2002, the financing of the remuneration and social contributions of prisoners engaged in these activities is provided directly by the prison administration. The management of the budgetary credits allocated for general service work is undertaken in each establishment by the head of the administration. Similarly, the number of prisoners assigned to general service work and their distribution in the three remuneration categories, according to the scale established by the head of the prison administration, are determined by decision of the director of the establishment. The Committee notes from this information that the “general service” function is no longer delegated to a private operator in the context of a management contract. It requests the Government to indicate whether this is indeed the case and to continue providing information on any change which may occur in the distribution of functions in the context of contracts for the operation of jointly managed prison establishments, where such functions affect work by prisoners. In this connection, please provide a copy of a contract for the operation of jointly managed prison establishments. Furthermore, the Committee notes that the Act on the orientation and programming of justice (2003-07) envisages the construction of 13,200 places for prisoners, including 10,800 in new prisons with new forms of public-private partnership. The Committee requests the Government to provide information on the nature of the new prison establishments, with an indication of the role played by the private operator in the provision of work to prisoners.

With regard to the level of remuneration of prisoners performing productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee notes the information report prepared in 2002 by Senator Paul Loridant for the Commission on Finance, Budgetary Supervision and the Accounts of the Nation on the supervision of budgetary item No. 904-11 of the RIEP relating to its commercial activities. It notes that the average daily remuneration for productive activities is 24 euros when the work is provided by the RIEP, 19 euros when it is performed under labour hiring contracts and 16 euros in jointly managed prison establishments. According to this report, in jointly managed establishments, the operating contract contains a contractual indicator known as the SMAP (minimum wage for the prison administration) for the minimum hourly remuneration rate for prisoners for productive work. The SMAP varies between 41 and 44 per cent of the minimum hourly wage. The Committee notes that the increase of the SMAP to 50 per cent of the minimum wage is one of the measures proposed in the report.

The Committee notes, according to the Government’s last report, that the SMAP has been replaced by the minimum remuneration threshold (SMR). The Government indicates that the principle of remuneration which cannot be lower than the SMR, applicable in jointly managed establishments, has been extended to workshops under concession in publicly managed establishments. The SMR is a tool used by the administration to control the remuneration applied by private groups. However, it is not a right of prisoners who work and there is no guaranteed minimum remuneration. The Committee notes all this information. It observes that, in 2006, the SMR represents 44.7 per cent of the SMIC. Noting that, according to the 2002 Senate information report referred to above, the average wages paid to prisoners when they perform productive activities for the benefit of private entities (labour-hiring contracts and jointly managed establishments) are lower than those applied by the RIEP, the Committee requests the Government to continue providing detailed information on the average wages paid to prisoners engaged in productive activities (for the RIEP and for private entities). Please also indicate whether it is envisaged making the SMR binding.

Employment contract

The Committee notes that, under the terms of sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. In its previous comments, the Committee hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners 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. The Government indicated in its 2004 report that the Plan for the Improvement of Labour and Employment Conditions (PACTE 2) set three objectives, including bringing prison labour closer to the generally applicable legislation. The prison administration is committed to a process of bringing the conditions under which prison work is performed as close as possible to the conditions found in the outside world. A circular has called on the establishments to make use of a “work engagement form”, which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work. It specifies matters relating to hiring, the duration of work, remuneration, trial periods, conditions relating to suspension and termination, requirements relating to regularity, etc. The Government adds that the work engagement form is an essential element in an approach aimed at the reintegration of prisoners as it prepares them for the performance of work and offers them protection and rights in exchange for a professional commitment.

The Committee also notes that the information report to the Senate, referred to above, emphasizes the need to introduce the rule of law and contracts into the prison work relationship. It raises the principle of the employment contract, while recognizing that the performance of work under detention presents specificities which require adjustments in relation to the general rules governing the employment contract. The report advocates offering employers the options of, firstly, an employment contract covered by general legal rules, concluded directly between the employer and the prisoner, with certain adjustments or, secondly, a specific public law prison labour contract, concluded by the prison administration and the prisoner, with the placing of the prisoner at the disposal of the actual employer being covered by a labour-hiring contract approximating an employment contract. The Committee also notes the opinion issued by the Economic and Social Council in February 2006 on “the conditions of the social and vocational reintegration of prisoners in France” and the report of the Court of Accounts “Detention and reintegration: The management of prisons”, published in 2006. These two authorities emphasize the need to establish a legal framework adapted to work by prisoners which specifies their rights and duties, as well as the rules applicable to their remuneration. According to the report of the Court of Accounts “the absence of a contract of employment between detainees and the enterprises which have recourse to their labour illustrates the ambiguous situation of prisoners, to which the development of the ‘work engagement forms’, advocated by the administration, only constitutes a partial response, as the latter have no legal value and are not used systematically”. The Committee hopes that the Government will be able to provide information in this next report on the progress achieved in this respect. It requests it to provide a more detailed information on the nature and use of work engagement forms.

2. Exploitation of the work of others. The Committee notes the information provided by the Government on the application of sections 225-13 and 225-14 of the Penal Code respecting the offence of obtaining the provision of unpaid services from a vulnerable or dependent person, and the offence of subjecting a vulnerable or dependent person to conditions of work or accommodation incompatible with human dignity. The Committee notes that Act No. 2003-239 of 18 March 2003 has extended the elements deemed to constitute these offences. Accordingly, it is henceforth sufficient for the vulnerability or state of dependence to be apparent or known to the person committing the offence. The Act also provides that minors or persons who are victims of such situations upon their arrival on the national territory shall be considered to be vulnerable or dependent persons which, according to the Government, makes it easier to categorize these offences when they are committed against foreign nationals. Furthermore, the penalties applicable for these offences have been increased. The Committee requests the Government to continue providing information, including statistics, on the application in practice of sections 225-13 and 225-14 of the Penal Code, and particularly to provide copies of any relevant court rulings. In this connection, the Committee notes with interest the interpretation by the Court of Cassation of the concept of human dignity.

3. Trafficking in persons. The Committee notes with interest that Act No. 2003-239 has inserted into the Penal Code a section on the trafficking of human beings (sections 225-4-1 to 225-4-8). These provisions define the trafficking of human beings and make those responsible liable to a sentence of imprisonment of seven years and a fine of 150,000 euros, which may be increased under certain circumstances. Persons committing this offence are also liable to the confiscation of all their assets (section 225-25). The Committee would be grateful if the Government would provide information on the effect given in practice to these new provisions of the Penal Code by providing copies of court decisions on this subject. It also requests the Government to provide information on the other measures that it has adopted to combat the trafficking of persons for sexual or labour exploitation. In particular, it would be grateful to be provided with information on the difficulties encountered by the public authorities in combating this phenomenon, the measures adopted to encourage victims to approach the authorities and to provide victims with protection.