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

The Committee has noted the Government’s report received in 2006 and requests the Government to provide additional information on the following matters:

Articles 1(1) and 2(1) of the Convention. Freedom of career military personnel to leave their service. Please provide information on provisions applicable to professional military officers and other career servicemen as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(a). Services exacted under compulsory military service laws. The Committee previously noted that, by virtue of article 36 of the Constitution of Kazakhstan, citizens of Kazakhstan perform military service in accordance with the law. It requested the Government to supply copies of laws concerning compulsory military service and, eventually, alternative (non-military) service. Since the texts governing the above matters have not been supplied, the Committee hopes that the Government will not fail to communicate them with its next report. As regards compulsory military service, please also indicate what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends.

Article 2(2)(c). Prison labour. The Committee previously noted that penal sanctions of deprivation of freedom and restriction of freedom (provided for in sections 48 and 45 of the Criminal Code) involve compulsory prison labour under procedures and conditions defined by the Code governing the execution of penal sentences of 1997 (sections 99 and 47). The Committee noted that compulsory labour of convicted persons may be exacted at the enterprises and organizations “of various forms of ownership” and observed that the wording of sections 99 and 47 does not seem to exclude that prisoners may be hired to or placed at the disposal of private enterprises, contrary to the provisions of Article 2(2)(c) of the Convention.

While this Article strictly prohibits prisoners from being hired to or placed at the disposal of private undertakings, the Committee has pointed out in its previous General Surveys, as well as in its most recent General Survey of 2007 on the eradication of forced labour (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 its General Survey of 2007 referred to above, 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.

In the light of the above explanations, the Committee again requests the Government to indicate whether convicted persons serving sentences of deprivation of freedom and restriction of freedom may work in workshops run by private enterprises inside or outside the penitentiary institutions, and if so, on what terms and conditions, supplying copies of relevant texts.

Please also indicate whether convicted persons serving a sentence of compulsory participation in public works (section 42 of the Criminal Code and section 30 of the Code governing the execution of penal sentences) can be placed at the disposal of private companies engaged in the execution of public works.

Noting also the provisions of the Code of Administrative Offences concerning “administrative arrest”, which is assigned by a court decision for a term of up to 15 days (section 31) and involves an obligation to perform labour under the supervision and control of local authorities (section 322), the Committee again requests the Government to indicate whether convicted persons serving a penalty of “administrative arrest” can be placed at the disposal of private companies (e.g. those engaged in the execution of public works).

Article 2(2)(d). Work exacted in cases of emergency. The Committee previously noted that article 24 of the Constitution of Kazakhstan excludes from the prohibition of forced labour work required in the conditions of a state of emergency or war. It again requests the Government to indicate whether any special legislation on the state of emergency has been adopted and, if so, to supply a copy. Please also state what guarantees are provided to ensure that the power to call up labour during a state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in case of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.

Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. The Committee previously noted the Criminal Code provisions punishing with sanctions of imprisonment the “illegal deprivation of a person’s freedom” for the purpose of sexual or other exploitation (section 126(3)) and “recruitment of persons for exploitation and trafficking” (section 128, as amended in 2003). It again requests the Government to provide information on the application of sections 126(3) and 128 in practice, supplying copies of the relevant court decisions and indicating the penalties imposed.