Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee has noted the information provided by the Government in its 2005 and 2006 reports.

Articles 1(1) and 2(1) of the Convention. Provisions concerning vagrancy. In its earlier comments, the Committee referred to certain criminal provisions punishing vagrancy, begging and “other parasitic ways of life”. It noted the Government’s repeated indications in its reports that these provisions had not been applied in practice. The Committee has noted that a new Criminal Code which entered into force in 2000 does not contain provisions concerning vagrancy. However, the Committee has noted that vagrancy is still punished under section 307.1 of the Code of Administrative Offences, which provides that, under certain conditions, the persons concerned may be taken into administrative custody for a term of up to ten days. It has also noted the Government’s indications in its 2005 report that section 307.1 is applicable to persons who do not have a definite place of living nor means of subsistence, who do not have employment (without having an official status of unemployed) and who gain their income by mendicancy and pilfering. The Committee previously noted that, under section 1, paragraph 2, and section 3 of the Act on Employment of Population, unemployment cannot serve as grounds for instituting administrative, criminal or other proceedings against jobless persons who are registered in the State Employment Service, looking for a job and ready to work.

While taking due note of this information, the Committee recalls, referring also to the explanations in paragraph 88 of its General Survey of 2007 on the eradication of forced labour, that the possibility to impose penalties for mere refusal to work is contrary to the Convention. The Committee therefore hopes that the necessary measures will be taken with a view to clearly excluding from the legislation any possibility of compulsion to work, e.g. by limiting the scope of section 307.1 of the Code of Administrative Offences to persons engaging in illegal activities, so as to bring the legislation into conformity with the Convention. Pending the adoption of such measures, the Committee requests the Government to describe the criteria established for the application of this provision and to supply information on any legal proceedings which define or illustrate its scope.

Article 2(2)(a). Compulsory military service for non-military purposes. In its earlier comments, the Committee referred to section 9(1) of the Act on the Status of Military Personnel 1991, under which military servicemen, during the period of their service, may be made to perform work or other tasks not related to military service, in accordance with the procedure laid down by the President of the Azerbaijan Republic. The Committee has noted the Government’s repeated statements in its reports, with reference to the Constitution of the Republic of Azerbaijan, that the armed forces may be called upon to fulfil duties which do not relate to their direct obligations, following the decision of Parliament, at the request of the President of the Republic, e.g. during the state of emergency. In its latest report, the Government confirms its previous indication that the abovementioned provisions have not been applied in practice.

The Committee recalls that, under Article 2(2)(a) of the Convention, work or service exacted by virtue of compulsory military service laws may only be excluded from the prohibition of forced labour if such work or service is of a purely military character. The Committee refers to the explanations in paragraphs 43–46 of its General Survey of 2007 on the eradication of forced labour, in which it pointed out that the provisions of the Convention relating to compulsory military service do not apply to career military servicemen and the Convention consequently is not opposed to the performance of non-military work by persons serving in the armed forces on a voluntary basis. But the use of conscripts for non‑military purposes may be permitted only in cases of emergency, as defined in the Convention. The Committee therefore hopes that measures will be taken, e.g. on the occasion of a possible future revision of the legislation, to indicate clearly that conscripts undergoing compulsory military service may be used only for purely military ends, with the exception of the emergency situations. Pending the revision, the Committee requests the Government to continue to describe the criteria for the application of the abovementioned national provisions and to provide any information on their application in practice, if and when such information becomes available.

Article 2(2)(c). Work of prisoners for private individuals, companies or associations. The Committee has noted the adoption of the Code on the Execution of Sentences, which entered into force on 1 September 2000. It has noted that under section 95.1 of the Code, every convicted person is under an obligation to work, such work being exacted from convicts either at enterprises and workshops of penitentiary institutions or on other enterprises, outside the penitentiary institution. The Committee previously noted that the former Correctional Labour Code (section 49) also provided for a possibility to use prison labour not only in the establishments belonging to the state executive penal system and in other state-owned enterprises, but also in enterprises based on other forms of ownership, on a contract basis.

As regards prison labour for private enterprises, the Committee recalls that Article 2(2)(c) of the Convention exempts from its provisions “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”. While this Article strictly prohibits prisoners from being hired to or placed at the disposal of private undertakings, the Committee has pointed out in 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 that 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 approximated a free labour relationship.

As regards conditions of work of convicted persons, the Committee has noted that, under section 96 of the Code on the Execution of Sentences, hours of work and rest periods, as well as occupational safety and health, are governed by the general labour legislation. In virtue of sections 97 and 99 of the Code, convicted persons’ remuneration is also governed by the labour legislation; their monthly wages cannot be lower than legally established minimum wage, and deductions from wages on the basis of execution documents cannot exceed 75 per cent of their monthly earnings. Section 90 of the Code provides for the convicted persons’ social security rights, including old-age pension rights.

While noting that, under the above provisions, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee requests the Government to indicate whether and how the voluntary consent of the prisoners to work for private enterprises is obtained, such consent being free from the menace of any penalty, including the loss of rights or privileges. Please also supply sample copies of contracts concluded between a private company and a penitentiary institution, as well as of any contracts between prisoners and a company.

Article 2(2)(d). Legislation concerning emergency situations. The Committee requests the Government to supply, with its next reports, a copy of the Law on the State of Emergency, which was adopted and entered into force in 2004.

Articles 1(1), 2(1) and 25. Trafficking in persons for the purpose of exploitation. The Committee has noted with interest the adoption, in June 2005, of the Law on Fighting against Trafficking in Human Beings, as well as the National Plan of Action to Prevent and Combat Human Trafficking. It has noted that section 21 of the Law provides for criminal responsibility for the offences related to human trafficking, “in accordance with the legislation of the Republic of Azerbaijan”. The Committee requests the Government to provide information on the penal provisions (e.g. amendments to the Criminal Code) adopted for this purpose, as well as the information on the legal proceedings which might have been instituted under these provisions, indicating the penalties imposed on perpetrators. Please also provide, more generally, information on measures taken to prevent, suppress and punish trafficking in persons for the purpose of exploitation, in accordance with the National Plan of Action referred to above.