Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes that the Government has sent no information in response to the first three points of its previous direct request. Consequently, it is bound to repeat its previous comments concerning these matters.

1. Articles (1(1) and 2(1) of the Convention. Freedom of seafarers to leave their employment. In its previous comments, the Committee noted that section 67 of the model conditions of service of seafarers (Decree No. 88-17 of 13 September 1988) provides that the employment relationship may in no event be terminated outside the national territory. Section 65 of the conditions of service provide for a three-month period of notice for hands and supervisors and six months for officers.

The Committee noted previously that, although section 67 of the conditions of service protects seafarers against dismissal which may result in their being put off the vessel outside the national territory, this provision does not permit seafarers to leave their employment after completion of the period of notice if, at the time, they are not on national territory. After having requested the Government to re‑examine this provision and indicate the measures taken to bring it into conformity with the Convention, the Committee noted that Decree No. 88‑17 had been submitted for examination to the relevant department of the Ministry of Transport.

The Committee noted the explanations provided by the Government in its report which confirmed that the employment relationship cannot in any event be terminated outside the national territory.

The Committee considered that the provision prohibiting seafarers from terminating their employment, even after the completion of the statutory period of notice, while they are outside the national territory, has the effect of turning a contractual relationship based on the will of the parties into service by compulsion of law for a period without limit of time.

As the Government has not provided any information on this subject in its latest report, the Committee once again requests it, first, to re-examine Decree No. 88-17 of 13 September 1988 in the light of the explanations provided in paragraphs 67–73 of its General Survey of 1979 on the abolition of forced labour and to indicate the measures which have been taken or are envisaged to ensure that seafarers can terminate their employment by giving a reasonable period of notice. It would also be grateful if the Government would indicate the nature and provide a list of the commitments undertaken by officers at the time of recruitment, since officers can only leave their employment after fulfilling all the commitments which they have undertaken.

2. Article 2(2)(a). Defence forces. Non-military work. In its previous comments, the Committee noted the provisions of Act No. 87-16 of 1 August 1987 to set up and determine the functions and organization of the people’s defence. The Committee noted that, under sections 1 and 3 of the Act, citizens aged between 18 and 60 years inclusive are subject to the obligations of the people’s defence, set up within the framework of the national defence; under section 8, the conditions for the deployment of the people’s defence forces in peacetime are set out in regulations; and, by virtue of section 9 with respect to economic defence, the people’s defence forces participate in the protection of production units and the strengthening of the economic capacity of the country. The application of section 9 of the Act is determined by means of regulations.

The Committee noted the Government’s repeated indications that the regulations on the application of section 9 had not yet been adopted and it requested information on the effect given in practice to section 9 of Act No. 87‑16. It noted the information sent by the Government to the effect that Act No. 87-16 of 1 August 1987 had fallen into abeyance, never having been applied since its enactment.

The Committee again requests the Government to take the necessary measures to bring its legislation into conformity with the Convention and with the indicated practice. Please also provide information on this matter in the next report.

3. Article 2(2)(c) and (d). Detention and work exacted in emergency under martial law. In its previous comments, the Committee noted that under sections 4 and 5 of Executive Decree No. 91-201 of 25 June 1991 determining the limits and conditions of referral to a security centre, issued under section 4 of Presidential Decree No. 91-196 proclaiming martial law, the military authorities, which were assigned police powers, can make detention orders against adults whose activities endanger public order and safety or the normal operation of public services (section 4(1)) through their refusal to comply with a written requisition order issued by the authority exercising the powers of the police and the maintenance of public order, thereby seriously affecting the functioning of the national economy (section 4(6)), or by opposing the execution of a requisition order issued by reason of the emergency and the need for services to be provided by a public or private service (section 4(7)). The period of detention in a security centre was set at 45 days, which could be renewed only once (section 5).

With reference to the explanations provided in paragraphs 63–66 of its General Survey of 1979 on the abolition of forced labour, the Committee indicated that it should be clear from the legislation itself that the power to exact labour is to be limited to what is strictly required in order to cope with circumstances endangering the existence or well-being of the whole or part of the population.

The Committee noted the information provided by the Government in its last report to the effect that Executive Decree No. 91-201 of 25 June 1991, issued under section 4 of Presidential Decree No. 91-196 of 4 June 1991 proclaiming martial law, was now officially null and void, even though it has not explicitly been repealed, as martial law was raised by Presidential Decree No. 91-336 of 22 September 1991. It noted that security centres were established under section 5(2) of Presidential Decree No. 92-44 of 9 February 1992 declaring a state of emergency, as supplemented, and that detention in a security centre was imposed under section 3 of Executive Decree No. 92-75 of 20 February 1992 establishing the conditions for the implementation of certain provisions of Presidential Decree No. 92-44 of 9 February 1992. According to the Government, all the security centres which were opened had since been closed.

The Committee again requests the Government to take the necessary steps to bring its legislation into line with the practice and to provide information on this matter in its next report.

4. Article 2(2)(c). Prison labour. Hiring of prison labour to private enterprises. In its previous direct request, the Committee recalled that, under these provisions of the Convention, the term “forced or compulsory labour” does not include any work or service exacted from any person as a consequence of a conviction in a court of law, 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. The Committee has pointed out in its previous General Surveys, including its most recent General Survey of 2007, paragraphs 59–60, that, provided convicted prisoners voluntarily consent to such work without being subjected to pressure or menace, such work does not fall within the scope of the Convention. At the same time the Committee has indicated that, bearing in mind the captive circumstances of prisoners, there must be safeguards to ensure their consent is given freely and voluntarily. The Committee in paragraphs 114–122 of the General Survey of 2007 discussed the safeguards which include not only written formal consent but, further, that the most reliable indicator of voluntariness of the labour is if the work is performed under conditions which approximate a free labour relationship. Factors to be taken into account in such circumstances would include, for example, that there was a level of wages and social security provisions which approximate a free labour relationship. In addition, the Committee in the General Survey of 2007 indicated that other factors that can be regarded as objective and measurable advantages which the prisoner gains from the actual performance of the work could be considered in determining whether free and informed consent is given. The Committee gave examples such as learning new skills which could be deployed by prisoners when released; the offer of continuing the work of the same type upon their release; or the opportunity to work cooperatively in a controlled environment enabling them to develop team skills. The Committee indicated that all of these factors should be taken as a whole in determining whether consent was freely given and they should be considered and assessed by the public authorities.

The Committee notes the provisions of Act No. 05-04 of 6 February 2005 issuing the Code on the organization of prisons and the social rehabilitation of prisoners. It notes that, according to section 48 of the Code, remand prisoners are not required to work other than to perform the tasks needed to keep the premises clean, and that the prison doctor must first be consulted for this purpose. In relation to convicted prisoners, sections 100–103 of the Code refer to external worksites:

–      section 100(1) provides that, under the external worksite regime, sentenced prisoners work in teams under the supervision of the prison administration outside the establishment performing tasks for public institutions and establishments;

–      section 100(2) provides that the hiring of prison labour may also be authorized under the same conditions to private enterprises involved in the performance of work of public interest;

–      section 102(4) indicates that the prison staff are responsible for supervision outside the establishment, on worksites, and during transfers and rest periods. However, the Code also allows for the employer body to be made partly responsible for this supervision requirement;

–      under section 103(1), requests for the hiring of prison labour are addressed to the judge responsible for the execution of sentences, who then submits them to the Committee for the Execution of Sentences for an opinion. Where such requests are approved, an agreement to establishing general and specific conditions of employment for prison labour is concluded with the requesting body;

–      under section 103(2), the agreement is signed jointly by a representative of the requesting body and the director of the prison establishment.

In addition, the Committee notes the following provisions:

–      section 115(1) sets up a public establishment to be responsible for the employment of prison labour;

–      section 115(2) provides for the duties, organization and running of the establishment to be set by regulation;

–      section 160 provides that, except in the event of incompatibility, prisoners assigned to a job or to tasks are covered by the provisions of the labour and social protection legislation in force;

–      under section 162, remuneration is paid to prisoners for all work done, on the basis of a pay scale established jointly by the Minister of Justice, Keeper of the Seals and the Minister responsible for labour;

–      section 164 allows the prison administration to conclude agreements with public or private bodies for the purpose of improving the management of prison establishments and achieving the objectives of rehabilitating prisoners and reintegrating them into society.

The Committee notes that none of the abovementioned provisions of the Code on the organization of prisons provides that convicted persons must give their consent freely and without the menace of any penalty whatsoever in the broad sense of Article 2(1) of the Convention to working for private enterprises. It notes that, according to these provisions, an agreement setting forth working conditions for prison labour is concluded between the prison establishment and the private enterprise, but that there is no employment contract binding the private employer and the prison worker. In view of the foregoing, the Committee requests the Government:

–      to indicate the measures taken or envisaged so that the voluntary character of the hiring of prisoners to private enterprises be reflected in the national legislation;

–      to communicate information on the application in practice of the provisions of the Code on the organization of prisons that allow the hiring of prison labour to private enterprises: number of prisoners and private enterprises concerned, occupations concerned, guarantees in terms of remuneration and occupational safety and health, etc.;

–      to provide copies of agreements concluded between prison establishments and private enterprises;

–      to provide a copy of the pay scales referred to in section 162 of the Code, also establishing a comparison with the remuneration of free workers;

–      to indicate whether prisoners may refuse to work for private enterprises and, if so, whether they may be exposed to sanctions for doing so, in particular in relation to the possibility of having their sentences reduced or arranged;

–      to indicate how the supervision of detainees is guaranteed in practice in the event that the employer body is made partly responsible for this supervision requirement;

–      to provide copies of the texts adopted for the application of the Code on the organization of prisons.

5. Punishment of vagrancy. The Committee notes that, according to section 196 of the Penal Code, a vagrant is anyone of no fixed abode and no means of livelihood who ordinarily exercises no trade or occupation although fit for work and who is unable to show that he or she has sought work or who has refused remunerated work offered. Section 196 further provides that vagrancy shall be punished by a prison term of from one to six months. The Committee would like to draw the Government’s attention to the fact that the above definition of vagrancy is not limited to activities that are unlawful or likely to disturb the public order and can therefore amount to an indirect constraint to work, which is contrary to the provisions of the Convention. It notes that section 195 of the Penal Code applies the same penalty to anyone engaging regularly in begging. The Committee would be grateful if the Government would provide information on the application in practice of section 196 of the Penal Code, including copies of relevant court decisions. It also requests the Government to take steps to limit the scope of section 196 solely to persons engaging in activities that are unlawful or likely to disturb the public order.