Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

1. The Committee notes Act No. 98/036 of 31 December 1998 issuing the Penal Code. It also notes Decree No. 247/72/PRG of 20 September 1972 concerning the establishment and structure of the prison administration and Decree No. 624/PRG/81 of 31 November 1981 complementing Decree No. 247/72/PRG. The Committee notes that, under section 73 of Decree No. 247/72/PRG and section 74 of Decree No. 624/PRG/81, work is compulsory for all convicted prisoners under common law but is optional for those who have been accused or charged.

2. Article 2(2)(c) of the Convention. Prison labour hired out to private individuals. The Committee notes that, under the terms of section 78 of Decree No. 247/72/PRG and section 79 of Decree No. 624/PRG/81, the work of prisoners consists, apart from labour gangs in the service of the prison, of workshop activities inside the prison and this work can be transferred under concession to individuals upon signature of an agreement with the administrative authority under the technical surveillance of the contractor’s delegate. This work can also consist of external work in the fields and on public worksites. The abovementioned sections state that all proceeds from this work go to the prisoners themselves.

The Committee recalls that, under the terms of these provisions of the Convention, any work or service exacted from any person as a consequence of a conviction in a court of law is only excluded from the scope of the Convention if 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. In order to comply with the Convention, private employment of prison labour must depend on the formal consent of the prisoner concerned (see paragraph 60 of the General Survey of 2007 on eradication of forced labour). In view of the particular situation in which prisoners are placed, this form of consent must also be endorsed by a number of guarantees, aimed at making prisoners’ conditions of work comparable to those of free workers. As part of these guarantees, the Committee has mentioned the level of remuneration and occupational safety and health protection. The Committee notes that no provision of the abovementioned Decrees provides that prison labour for private individuals must be performed on a voluntary basis and with the necessary guarantees. It notes that the fact that prisoners are “transferred” (cédés) for work, as referred to in the abovementioned sections 78 and 79, tends to denote a lack of consent on the part of the prisoners. The Committee emphasizes the need to incorporate provisions in the national legislation which establish, firstly, the obligation to obtain formal consent from prisoners to work for private individuals, companies or associations and, secondly, guarantees, especially regarding remuneration and occupational safety and health, indicating the existence of conditions of work which are comparable to those of a free employment relationship. It would be grateful if the Government would indicate whether, in practice, convicted prisoners are hired, inside or outside prisons, to private individuals, companies or associations, as provided for by section 78 of Decree No. 247/72/PRG and section 79 of Decree No. 624/PRG/81. If so, it requests the Government to indicate how the formal consent of the prisoners concerned is ensured and what guarantees they enjoy, particularly with regard to remuneration and occupational safety and health.

3. Article 2(2)(d). Cases of emergency. The Committee notes that section 517(11) of the Penal Code states that anyone capable who refuses or neglects to perform work or service or to lend assistance required of them in cases of accident, unrest, shipwreck, flood, fire or other calamities, or in cases of banditry, looting, blatant criminal activity, public disturbance or judicial execution, shall be liable to imprisonment ranging from one to 15 days and a fine. It notes that, although some of the abovementioned circumstances do correspond to cases of emergency as provided for by Article 2(2)(d), others – particularly cases of banditry, looting, blatant criminal activity, public disturbance and judicial execution – cannot be considered as cases of emergency within the meaning of these provisions of the Convention. The Committee requests the Government to indicate how these provisions are applied in practice, by sending a copy of any court decision issued on the basis of section 517(11) of the Penal Code.

4. Articles 1(1) and 2(1). Vagrancy. The Committee notes that section 272 of the Penal Code states that vagrants are persons who have no fixed abode and no means of subsistence and generally have no job or occupation. Under the terms of section 273(1), any person who has been officially declared a vagrant is liable by virtue thereof to imprisonment ranging from three to six months. The Committee notes that this very broad definition of vagrancy might lead to the imposition of imprisonment including the obligation to work on persons who have done nothing to disturb public order. As indicated by the terms of section 273(1) itself, the very fact of having no fixed abode or means of subsistence and being habitually without a job or occupation is sufficient to come within the scope of application of the Penal Code. The Committee emphasizes that such provisions, which are sufficiently general to be potentially applicable in such a way as to constitute a direct or indirect constraint to work, are incompatible with the Convention. It therefore requests the Government to take the necessary steps to restrict the scope of sections 272 and 273 only to persons who are guilty of unlawful activity. In the meantime, it would be grateful if the Government would indicate how these sections are applied in practice and send a copy of any court decision issued on the basis thereof.

5. Article 25. Penalties. The Committee notes that section 337 of the Penal Code concerning the trafficking of persons states that anyone who concludes an agreement for the purpose of depriving another of his or her freedom, whether for financial gain or free of charge, shall be liable to imprisonment ranging from five to ten years. Moreover, securing the provision of services without remuneration, or in exchange for remuneration that is clearly not commensurate with the scale of the task accomplished, by abusing the vulnerability or dependent situation of a person, shall be liable to imprisonment ranging from six months to five years and a fine. Finally, exposing a person to conditions of work or accommodation which are incompatible with human dignity by abusing that person’s vulnerability or dependent situation, shall be liable to imprisonment ranging from one month to five years and a fine. Section 339 of the Penal Code states that anyone who delivers or receives a person into bondage shall be liable to imprisonment ranging from one month to two years, which may be increased to five years in cases where the victim is under 15 years of age, and a fine. The Committee requests the Government to indicate whether any court decisions have been issued on the basis of these provisions. If so, it would be grateful if the Government would send a copy of them to the Office.