Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 3 of the Convention. Worst forms of child labour. Clauses (a) and (b). Sale and trafficking of children and the use, procuring or offering of a child for the production of pornography or for pornographic performances. In its previous comments, the Committee noted that the national legislation does not contain provisions prohibiting the sale or trafficking of young persons under 18 years of age for economic exploitation or the procuring or offering of a child under 18 years of age for the production of pornography or for pornographic performances. It expressed the strong hope that the draft amendment to the Penal Code would be adopted in the near future and that it would give effect to Article 3(a) and (b) of the Convention.

The Committee notes with satisfaction the promulgation of Act No. 641 of 16 November 2007 issuing the new Penal Code. The new Penal Code, which entered into force again in July 2008, defines commercial sexual exploitation in the chapter on “Offences against freedom and sexual integrity”. These offences cover sexual exploitation, pornography and the sexual act with young persons in return for payment (section 175); the promotion of tourism for the purpose of sexual exploitation (section 177); aggravated procurement (section 179); procurement (section 180); and the trafficking of persons for the purposes of slavery or sexual exploitation (section 182). Furthermore, section 315 of Title X of the same Code on “Offences against labour rights” provides for the imposition of a prison sentence of five to eight years on anyone who, in the context of an employment relationship, subjects, forces or maintains another person in a situation of slavery or in conditions similar to slavery or forced labour. The same section provides for the imposition of penalties on persons who traffic other persons for the purpose of labour exploitation. It also provides for heavier penalties if the victims are children. The Committee requests the Government to provide information on the application of the above provisions of the new Penal Code in practice, including, in particular, statistics on the number and nature of violations reported, the investigations conducted, prosecutions, convictions and penal sanctions imposed.

Clause (d). Hazardous work in agriculture. In its previous comments, the Committee noted that, according to the statistics available to the Office, 60 per cent of children who work in Nicaragua are engaged in activities in the agricultural sector, which is a branch of economic activity in which the working conditions may be hazardous for young persons under 18 years of age. It also noted that the list of hazardous types of work prohibited for young persons under 18 years of age, set out in the Ministerial Agreement of 14 November 2006, includes types of hazardous work in the agricultural sector. In view of the above statistics, the Committee urged the Government to take the necessary measures as a matter of urgency to ensure that no young person under 18 years of age is engaged in the worst forms of hazardous work in agriculture, that those responsible for availing themselves of such labour are prosecuted and that effective and dissuasive penalties are imposed on such persons.

The Committee notes the Government’s indication that tripartite consultations on the matter of updating the list of hazardous types of work are currently being held within the National Occupational Safety and Health Council and the National Committee on the Progressive Elimination of Child Labour (CNEPTI), but also with the labour inspectorate for children. The Committee also notes with interest that sections 315 and 317 of the new Penal Code provide respectively for a penalty of 2 to 4 years’ imprisonment for anyone who recruits a minor under 18 years of age for the purpose of labour exploitation with the exception of cases authorized by law, as well as a prison sentence of 3 to 6 years and a financial penalty of 400 to 600 fine days for anyone who uses or allows children under 18 years of age to carry out work in unhealthy environments which pose a threat to their life, health or physical, psychological or moral integrity. These types of work include work in mines, underground, rubbish dumps, evening entertainment centres, involving the use of dangerous machinery, equipment and tools, the manual transport of heavy loads, toxic objects and substances, psychotropic substances, as well as night work in general or in any other task defined as hazardous work for children, in accordance with the relevant provisions. The Committee requests the Government to provide information on the outcome of the consultations held with regard to the updating of the list of hazardous types of work, in particular hazardous work in agriculture, and to provide a copy of any relevant text or draft text. Furthermore, while welcoming the legal measures adopted with a view to ensuring that no child under 18 years of age is engaged in hazardous work and that any person who avails himself of such labour shall be liable to the above administrative and penal sanctions, the Committee hopes that the Government will provide information and statistics in its next report showing the impact, in practice, of these new provisions.

Domestic work. In its previous comments, the Committee encouraged the Government to continue its efforts to ensure that young persons under 18 years of age, particularly young girls, who are engaged in domestic service do not perform hazardous types of work, and expressed the hope that the preparatory work on the draft amendment to Title VIII of the Labour Code would be completed in the near future and that measures would be taken for its adoption very soon.

The Committee notes with satisfaction the adoption of Act No. 666 of 4 September 2008 on domestic work and amending Chapter I of Title VIII of the Labour Code. This Act protects young persons working in domestic service by laying down the recruitment and working conditions, as well as the penalties applicable in the case of abuse, violence or humiliation of these young workers by the employer or his family. It also prescribes the obligation of the employer to notify the labour inspectorate of such recruitment and also provides for cash remuneration and a 6-hour day between 6 a.m. and 8 p.m. The employer is also under the obligation to promote and facilitate the education of his young domestic workers and register these workers under the social security scheme. Moreover, the wage paid must not be below the wage set by the National Minimum Wage Committee. The Act also provides for joint periodic inspections of the employer by the labour inspectorate and the Ministry of Family, Adolescence and Childhood. The Committee requests the Government to provide information on the application of the Act No. 666 on domestic work in practice, including any difficulties encountered and, in particular, statistics on the inspections carried out, violations reported, administrative sanctions imposed, any criminal charges laid, prosecutions and penal sanctions imposed.

Article 7, paragraph 2. Effective and time-bound measures. Clause (b).Assistance for the removal of children from the worst forms of child labour. Commercial sexual exploitation. In its previous comments concerning the number of children removed from the sex trade and their rehabilitation and social integration, the Committee noted that, according to the 2007 evaluation reports on the ILO–IPEC regional project on the commercial sexual exploitation of children (the regional project), a greater number of children are being targeted in Nicaragua. Accordingly, 1,720 children should receive direct assistance, of which 580 are in Nicaragua, and 18,000 should receive indirect assistance. The Committee strongly encouraged the Government to continue its efforts to combat commercial sexual exploitation. It requested it to provide information on the implementation of the ILO–IPEC regional project on the commercial sexual exploitation of children and the National Plan to combat commercial sexual exploitation (2003–08), as well as on the number of children who are in practice removed from this worst form of child labour. The Committee also requested the Government to provide information on the economic alternatives envisaged and on the measures taken to ensure the rehabilitation and social integration of children removed from this worst form of child labour.

The Committee notes, among the information available to the ILO, that the general objectives of the National Plan to combat commercial sexual exploitation (2003–08) were: the gradual development of strategies and actions for the prevention and detection of commercial sexual exploitation of children and young persons, as well as for the protection and comprehensive care of victims; the modification of attitudes and values of the population in order to promote the elimination of commercial sexual exploitation of children and young persons; the improvement of access to the judicial system and the facilitation of the filing of complaints; the application of the relevant procedures; prevention; the punishment of those responsible; and the strengthening of the institutions responsible for implementing the plan so that they are in a position to take appropriate measures to achieve their objectives.

The Committee notes that, according to the Technical Progress Report (TPR) of 1 March 2009 on the ILO–IPEC regional project entitled “Contribution to the prevention and elimination of commercial sexual exploitation of children in Central America, Panama and the Dominican Republic”, a total of 320 children were removed or prevented from becoming engaged in the worst forms of child labour, such as trafficking and commercial sexual exploitation, through the provision of educational services and training opportunities between September 2008 and February 2009, including 51 children in Nicaragua. It also notes that, during the same period, a further 87 children were removed or prevented from becoming engaged in the same worst forms of child labour, through the provision of services unrelated to education, including 14 children in Nicaragua.

The Committee also notes with interest that the Programa Amor (Government programme which since October 2008 has had the functions of the National Council for the Comprehensive Protection of Childhood and Adolescence (CONAPINA) and which, as a result, is now responsible for monitoring the national policy and the National Plan to combat commercial sexual exploitation) aims to restore the rights of 25,000 street children and young persons, who are very vulnerable to commercial sexual exploitation, and that the Government has set the objectives of integrating all children into the education system and ensuring that they receive social benefits by 2011.

The Committee also notes that programmes such as the “Zero interest” programme and the “Zero hunger” programme, implemented in the context of the Programa Amor, also constitute Government efforts to help the most vulnerable families. The “Zero interest” programme is designed to help and benefit thousands of women who are unable to obtain credit from the private financial system to strengthen their small enterprises, while the “Zero hunger” programme is a proposal for the provision of ecologically friendly agricultural technologies for poor rural families which can be turned into capital, but also a proposal for assistance and support in organizing their production activities.

The Government also points out in its report that one of the actions aimed at protecting working children and young persons is the amendment of the technical inspection guide with regard to the inspection of work carried out by children and young persons. It also indicates that the Ministry of Labour has implemented programmes of special inspections targeting 101 night clubs, massage centres, restaurants, hotels and snooker halls in markets in the Departments of Managua and Río San Juan, and that fines have been imposed on eight enterprises for obstructing the work of labour inspectors. The Government also indicates that statistics on child labour and the worst forms of child labour are gathered and dealt with in a manner that enables the Ministry of Labour to apply the necessary corrective measures. It also notes that issues relating to child labour and its gradual elimination are included in the Decent Work Programme, although they still come under the ILO–IPEC programme. The Committee requests the Government to continue providing information on any other measures implemented under the ILO–IPEC regional project on the commercial sexual exploitation of children and the Programa Amor and on the results achieved. It also requests it to provide information on the number of children who have benefited from rehabilitation and social integration, following their removal from the worst forms of child labour.

Child labour in agriculture. In its previous comments, the Committee noted that Nicaragua had signed a memorandum of understanding with the
ILO–IPEC for the elimination of the worst forms of child labour, particularly in the agricultural sector. It requested the Government to take effective and time‑bound measures to prevent children from being engaged in hazardous types of work in the agricultural sector and to provide information on the number of children who are in practice removed from this worst form of child labour. It also requested the Government to provide information on the economic alternatives envisaged, as well as on the measures taken to ensure the rehabilitation and social integration of children removed from this worst form of child labour. Noting that no information has been provided by the Government concerning other measures aimed at eliminating, in practice, child labour in agriculture, or on the number of children who are in practice removed from this worst form of child labour, the Committee requests the Government to provide this information in its next report.

Article 8. International cooperation. Commercial sexual exploitation. In its previous comments, the Committee noted that the ILO–IPEC regional project on the commercial sexual exploitation of children envisages the strengthening of horizontal collaboration between participating countries. The Committee was of the view that international cooperation between law enforcement agencies is indispensable to prevent and eliminate commercial sexual exploitation, through the collection and exchange of information and assistance with a view to detecting, prosecuting and convicting the individuals involved and repatriating the victims. The Committee requested the Government to provide information on the measures taken in the context of the implementation of the ILO–IPEC regional project on the commercial sexual exploitation of children with a view to cooperating with the countries participating in the project and thereby strengthening security measures so as to bring an end to this worst form of child labour. Noting that the Government has not replied to its request for information, the Committee once again requests it to provide information on any measures implemented in the context of the ILO–IPEC regional project on the commercial sexual exploitation of children relating to cooperation with other beneficiary countries with a view to strengthening security measures so as to bring an end to this worst form of child labour and on the results achieved.

Protocol respecting the repatriation of child victims of trafficking. The Committee previously noted the Protocol respecting repatriation procedures for children and young persons who are victims of trafficking (Protocol) adopted by the Ministry of the National Coalition to Combat the Trafficking of Persons. It also noted that, under section 2 of the Protocol, its objective is to establish interinstitutional coordination mechanisms to offer special protection to child victims of trafficking and to facilitate their repatriation. The Committee also noted that the Protocol applies to both Nicaraguan child victims of trafficking abroad and to foreign victims of trafficking to Nicaragua. The Committee requested it to provide information on the implementation of the Protocol by indicating, in particular, the number of Nicaraguan and foreign child victims of this worst form of child labour who have been repatriated. Noting that the Government has not provided the information requested, the Committee once again requests it to provide information on any measures implemented under the above Protocol with a view to providing special protection for child victims of trafficking and facilitating their repatriation, and statistics on the number of children repatriated.

The Committee is raising other points in a request addressed directly to the Government.