Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 (paragraph 1), 2 (paragraph 1), and 25, of the Convention. Trafficking in persons. In its previous comments, the Committee noted with interest the adoption of Act No. 2003-239 of 18 March 2003 which had inserted into the Penal Code provisions defining the trafficking of human beings as well as the penalties applicable (sections 225-4-1 to 225-4-8 of the Penal Code). It also noted the provisions criminalizing and punishing “conditions of work or accommodation incompatible with human dignity” and the interpretation by the criminal chamber of the “Cour de Cassation” of the concept of human dignity.

The Committee notes the information provided by the Government in December 2008 in its report on the application of the Abolition of Forced Labour Convention, 1957 (No. 105), on the measures taken to strengthen the legal instruments designed to combat modern slavery and in particular the trafficking of human beings. With regard to trafficking in persons, the Committee notes that Decree No. 2007-1352 of 13 September 2007, has introduced a series of provisions into the legislation designed to protect the victims of trafficking. Thus, where the police or “gendarmerie” believe that a foreigner who has been the victim of trafficking is likely to make a complaint against his attacker or give evidence in a criminal procedure, they inform the victim of his or her rights and of the possibility of taking advantage of a 30-day cooling-off period. Foreign victims who are in an irregular situation and who make a complaint against their  attacker are granted a temporary residence permit giving them the right to carry out an occupational activity, which is renewable throughout the duration of the criminal procedure. In the event of the final conviction of the person accused, the victim may be granted a long-term residence permit. The victim may also be given social and medical protection and, if necessary, police protection. The Government also indicates that a telephone helpline has been set up which gives victims the opportunity to be listened to, advised on their rights and referred on anonymously. Furthermore, investigators and magistrates are given extended powers of investigation in the context of investigations and legal proceedings initiated related to trafficking in persons. Finally, the Government provides statistics on the convictions handed down for trafficking.

The Committee notes all this information which shows the Government’s determination to strengthen its legislative measures to combat the complex phenomenon of trafficking in persons. It requests the Government to provide information on the implementation of the above legislation by indicating, in particular, whether awareness-raising activities have been carried out for the benefit of the investigation and prosecution services. With regard to the protection of victims, the Committee asks the Government to specify the number of victims who have benefited from a period of reflection, as well as a residence permit under sections R316-2, R316-3 and R316-5 of the Code on the entry and stay of foreigners and the right to asylum. Please also provide information on the measures taken to ensure that those responsible are prosecuted, whether on the initiative of the victims or on the initiative of the prosecution authorities, as well as on the difficulties encountered by the authorities in this regard. Finally, noting that the statistics provided by the Government on the number of trafficking offences punished in 2007 (19) do not specify the sentence handed down to the perpetrators, the Committee would be grateful if the Government would continue providing such information in its future reports, specifying the sentences handed down, so that it can ensure that the sentences handed down for the offence of trafficking of human beings are really adequate and strictly enforced, in accordance with Article 25 of the Convention.

Article 2, paragraph 2, subparagraph (c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee observed that prisoners may be required to work for private enterprises and in that case may be assigned to general service for jointly managed prison establishments, carrying out work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities for private enterprises hiring labour from the prison administration or in jointly managed establishments. Although, under Article 2(2)(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that where work is performed under conditions approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may be compatible with the Convention. In this regard, the Committee noted that the guiding principles of the legislation governing prison work in France met, on a number of essential points, the criteria set out by the Committee for work performed by a prisoner for a private entity to be regarded as approximating a free labour relationship and as such does not come under the prohibition set out in Article 2(2)(c). The Committee nonetheless wished to be provided with further information on certain of these criteria.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that the Code of Criminal Procedure had been amended so that each convict benefited from a sentence reduction credit calculated on the basis of the length of the sentence, which may nonetheless be withdrawn by the judge responsible for the execution of sentences in the event of bad conduct by the convict during detention (section 721(3)). The Committee requested the Government to indicate whether, in practice, a prisoner’s refusal to work could be taken into account in determining bad conduct by that prisoner. The Committee notes that, in its latest report, the Government indicates that the issue of a refusal to work, and its possible consequences, can only arise in two cases: the prisoner takes the decision to stop a paid activity in breach of the rules or established practice (for example, by not giving notice) or the prisoner refuses to take up a post offered after he has requested it. In both cases, the refusal to take up a post offered does not in itself constitute a disciplinary offence.

With regard to the issue of consent to work, the Committee notes that the new Prisons Act, adopted on 13 October 2009, places all convicted persons under the obligation to carry out an activity. Under section 27(1), all convicted persons are under the obligation to carry out at least one of the activities offered to them by the head of the establishment and the director of the Prison Probation and Reintegration Service given that these activities are designed to reintegrate the person concerned and are adapted according to their age, skills, handicap and personality. Among the activities which may be offered to prisoners, paragraph 2 mentions learning to read and write, arithmetic and the French language, where the prisoner has not mastered these skills. The Committee notes that, although work is not expressly mentioned among the activities which may be imposed on convicted persons, it emerges from the discussion of the bill in the Senate and the National Assembly that, for the legislator, work is among the activities which the convicted person may be obliged to carry out. The Committee requests the Government to clarify this point, specifying whether work may be offered in the context of the obligation to carry out an activity, insofar as the convicted person is obliged to carry out an activity. If applicable, please indicate the effect of this new provision on section D99(1) of the Code of Criminal Procedure which removed the obligation to work in prison by providing that “prisoners, irrespective of their penal category, may request that work be offered to them”.

(b) Conditions of work approximating those of a free labour relationship. Noting that, under section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing prisoners for normal conditions of free work, the Committee requested the Government to provide further information on the remuneration of prison labour and the existence of an employment contract where work is carried out for the benefit of private entities.

Remuneration. The Committee previously emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments were not covered by the exception provided for in Article 2(2)(c), and should therefore receive gross remuneration approximating the levels of remuneration applicable to the same activities performed outside prisons.

With regard to general service work, the Committee notes that the average remuneration level is set each year by the prison administration for all establishments, regardless of how they are managed.

With regard to the level of remuneration of prisoners carrying out productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee previously noted the existence of a minimum remuneration threshold (SMR) which, although not a guaranteed minimum remuneration for prisoners, was a tool used by the prison administration to control the remuneration applied by private groups. The Committee also noted that the average wages paid to prisoners when they performed productive activities for the benefit of private entities (labour hiring contracts and jointly managed establishments) were lower than those applied by the Industrial Board of Prison Establishments (RIEP). It requested the Government to provide information in this regard and to indicate whether it was envisaged that the SMR would be made binding.

The Committee notes that the Government indicates in its report that, under the labour hiring regime, the remuneration is set in relation to the index-linked guaranteed minimum wage (SMIC) according to the average level of production determined after a trial period, in accordance with the thresholds established by the circular of 20 November 1998 on labour hiring contracts and clauses. Where productive activities are delegated to private groups, the remuneration has to be in line with the SMR. The Government confirms that checks are carried out on a monthly basis for each workshop to verify whether the SMR has been reached by dividing the total wages by the number of hours worked. It therefore constitutes an average collective minimum level of remuneration but does not ensure a minimum remuneration for individual prisoners. The Government adds that the minimum hourly remuneration rate for productive activities was €3.90 on 1 January 2009 (which represents 44.21 per cent of the hourly SMIC, set at €8.82 on 1 July 2009). It emphasizes that the specific characteristics of production within a prison environment include lower productivity than in a free environment. The difference in productivity levels compared to the outside world therefore results in a remuneration level that is lower than it would be under free labour conditions.

The Committee notes the various methods of fixing the wages of prisoners engaged in productive activities. It requests the Government to provide statistics allowing a comparison of the minimum hourly rates and/or the average hourly rates applicable to productive activities in the RIEP workshops under the labour hiring regime, where the organization of the work is delegated to private groups and in the new jointly managed prison establishments.

The Committee also notes that, under section 32 of the new Prisons Act, which supplements section 717-3 of the Code of Criminal Procedure, the remuneration for work carried out by prisoners may not be below an hourly rate set by decree and indexed to the SMIC, though the rate may vary according to the regime under which prisoners are employed. The Committee requests the Government to indicate the measures taken to implement the principle set out in section 32 of the new Prisons Act and to specify the rates fixed for the various regimes under which prisoners are employed. The Committee hopes that the introduction into the national legislation of a minimum hourly rate of remuneration indexed to the SMIC will make it possible for the remuneration of prisoner workers to more closely approach that of free workers.

Employment contract. The Committee previously noted that, under sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. It hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employer, whether it is the enterprise for which the work is performed or an entity under the prison administration. In this regard, it noted that a circular had called on the establishments to make use of a “work engagement form” which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work and specifies matters such as hiring, the duration of the work, remuneration, trial periods, conditions relating to the suspension and termination of the labour relationship and requirements relating to regular attendance. The Committee requested the Government to provide further information on the nature and use of work engagement forms.

The Committee notes with interest that section 33 of the new Prisons Act provides that “the participation of prisoners in occupational activities organized in prison establishments shall give rise to the drawing up of an engagement document by the prison administration. This document, signed by the head of the establishment and the prisoner, shall set out the professional rights and obligations of the prisoner, as well as his conditions of work and remuneration”. The Committee hopes that the recognition of prisoner workers as rights bearers will enable their conditions of work to more closely approach those of free workers and requests the Government to provide a copy of a standard engagement document and to specify the information which has to be included in that document.