Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 29) sur le travail forcé, 1930 - Burundi (Ratification: 1963)

Autre commentaire sur C029

Observation

Demande directe

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Articles 1(1) and 2(1) of the Convention. 1. Possibility for the recipients of a study grant to leave their employment within a reasonable period. For many years, the Committee has been drawing the Government’s attention to the need to amend section 28 of Decree No. 100/003 of 3 January 1990 on study grants and traineeships, under which the recipient of a study grant is required to undertake to serve the Government for a period of ten years. In its previous comments, the Committee asked the Government to provide information on the measures taken to allow persons who have received a study grant or traineeship at the expense of the State to leave their employment within a reasonable period, proportional to the duration of the training received, or following the reimbursement of the costs incurred by the State.

The Committee notes the Government’s indication in its report that section 25 of Decree No. 100/07 of 14 January 2014 reorganizing the study grant management committee and establishing general principles for the renewal, withdrawal and reinstatement of study grants and traineeships provides that a study grant or traineeship received must be repaid in the following cases:

-when a student sent abroad does not return to Burundi, at the end of his or her training, to work for at least two years;
-when the terms of the contract clearly state that the grant was awarded as a loan;
-when it is found and established by the Committee that the grant was unduly paid.

The Committee notes section 25 of Decree No. 100/07 of 14 January 2014 and the cases in which study grants or traineeships are to be reimbursed. The Committee requests the Government to provide information on the measures taken to allow persons who have received a study grant or training at the expense of the State to leave their employment within a reasonable period which is proportional to the duration of the training received, apart from in the cases of reimbursement indicated in section 25. Please also provide details of the criteria for establishing that a grant has been unduly received.

2. Conditions governing the resignation of military personnel. In its previous comments, the Committee noted that, in accordance with the provisions of Acts Nos 1/15, 1/16 and 1/17 on the conditions of service of officers, non commissioned officers and privates of the national defence force, respectively, military personnel must provide written notification of their intention to leave the national defence force. Their requests must, depending on their ranks, be accepted by the competent authority or the General Chief of Staff. The Committee requested the Government to provide information on the application of these provisions in practice, with an indication of whether requests by these members of the military staff to resign may, in practice, be refused or deferred and, if so, to specify the reasons for such refusals or deferrals. The Committee also requested the Government to indicate whether Presidential Decrees Nos 1/106 of 25 October 1967 and 1/111 of 10 November 1967 on the status of non-commissioned officers in the armed forces and the status of officers were tacitly repealed by Acts Nos 1/15, 1/16 and 1/17.

The Committee notes the Government’s indication that Decrees Nos 1/106 and 1/111 were repealed by Decrees Nos 1/15, 1/16 and 1/17, which were amended and adopted by the Decree of 23 April 2010. The Government specifies that the procedures for requesting and accepting a resignation are set out in Chapter 4 of the Decree of 23 April 2010. However, the Committee notes that the Government has not supplied any information on the conditions for the resignation of military personnel following the adoption of the Decree of 23 April 2010 amending Acts No. 1/15, 1/16 and 1/17. The Committee therefore requests the Government to provide a copy of the Decree of 23 April 2010 and to provide information on the effect given to the provisions of Chapter 4 of this Decree, with an indication of whether requests by these members of the military staff to resign may, in practice, be refused or deferred and, if so, to specify the reasons for such refusals or deferrals.

3. Trafficking in persons. The Committee notes that the Penal Code, adopted in 2009, contains one part covering smuggling and trafficking in persons (sections 242 and 243 of Act No. 1/05 of 22 April 2009 revising the Penal Code). Anyone concluding an agreement to deny the freedom of another person is liable to a sentence of from five to ten years’ imprisonment. Persons who conclude such an agreement for purposes of the sexual or domestic exploitation of the victim (section 242) and those who have brought into Burundi or removed from the country any individuals covered by such an agreement, are liable to the same prison sentences. The Committee considers that the adoption of these provisions constitutes a first step in combating trafficking in persons. It notes, however, that the elements that constitute this crime are defined restrictively and do not appear to cover trafficking in persons for the purpose of labour exploitation. The Committee also notes in this respect that the new Penal Code does not contain any provisions criminalizing or penalizing the use of forced labour. The Committee requests the Government to provide information on the legal procedures initiated on the basis of section 242 of the Penal Code, specifying the facts giving rise to the prosecutions and the penalties imposed on the perpetrators. The Committee also requests the Government to provide information on the measures taken to prevent, repress and punish trafficking in persons both for sexual exploitation and labour exploitation, and on the difficulties encountered by the authorities in these areas.

Article 2(2)(c). Community work. The Committee notes that the penalty of community work is among the main penalties provided for in the Penal Code (section 53 et seq.). Under these provisions, any person found guilty of a crime or violation may be sentenced by a court to perform unpaid work for a public legal entity or association authorized to carry out community work. The duration of this work may not exceed 720 hours, and the nature and procedures for the performance of such work shall be specified in the sentence. The Committee notes that several sections of the Penal Code of 22 April 2009 were amended by Act No. 1/20 of 8 September 2012. The new section 54 of the Penal Code thus extends the duration of this work, which may henceforth be increased to a maximum of 2,824 hours when the prison sentence does not exceed two years. The nature and procedures for the performance of community work shall be set out in the sentence.

In its General Survey on the fundamental Conventions of 2012, the Committee recalls that the compulsory labour excluded under Article 2(2)(c) may take the form of compulsory prison labour or work exacted following the imposition of other kinds of penalty, such as a sentence of community work. The two conditions set forth in Article 2(2)(c) are equally important and apply cumulatively, namely the fact that the prisoner remains at all times under the supervision and control of a public authority and that the person may not be hired to or placed at the disposal of private individuals, companies or associations. The Committee requests the Government to indicate whether the sentence of community work may be applied without the consent of the convicted person. Please also provide the list of associations authorized to implement community projects, as well as examples of the types of work carried out, in order to ensure that the association for which the work is done should not be profit-making, or that the work should not serve the purpose of economic gains.