Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

1. Referring to its general observation of 1998, in which it requested governments bound by the Convention to provide information regarding hiring prison labour to private parties or placing it at their disposal, the Committee takes note of the following information communicated by the Government in its report:

-  In Tunisia, there are no prisons run by private firms and no private prison enterprises. Furthermore, prisoners are not hired out and they can be employed only to perform work of benefit to the community, and with their express consent.

-  Under Act No. 95-9 of 23 January 1995, the lawmaker abolished the penalty of re-education by labour which had been one of the auxiliary penalties under section 5 of the Tunisian Penal Code.

-  Section 5 of the Penal Code was also modified yet again by Act No. 99-89 of 2 August 1999, which added community service as a substitute penalty to the list of principal penalties.

The Committee notes that the new section 15bis of the Penal Code provides that "in cases in which a court hands down a sentence of imprisonment for a period not exceeding six months, it can substitute for the said penalty a period of unpaid community work of not more than 300 hours, two hours of work being deemed to be equivalent to one day of imprisonment". This section also lists the offences which may be punished by a community service sentence.

The Committee notes that the new section 15ter of the Penal Code provides that "it is a requirement for sentences of community service that the accused be present in court, express remorse for his actions and not be a recidivist. Before sentence is passed, the court must inform the accused of his right to refuse to do community service and record his response. In the case of such a refusal, the court shall pass one of the other sentences provided for".

Under the terms of the new section 17, "community service shall be performed in public establishments, local communities, charitable or aid associations, or in associations of benefit to the Nation and environmental protection associations". The Committee requests the Government to specify the conditions and practical arrangements for community service in charitable or aid associations, in associations of benefit to the Nation and in environmental protection associations, indicating whether these terms refer to private or public bodies, and to communicate a copy of all relevant regulations.

Under the terms of the new section 18, "a person sentenced to perform community service shall enjoy the protection of laws and regulations on occupational safety and health. The establishment where a person performs community service shall insure him against occupational accidents and diseases, in accordance with the laws in force".

Under the terms of the new section 18bis, "before any community service is carried out, persons sentenced shall undergo a medical examination to ensure that they are not suffering from dangerous conditions and are fit for the work".

2. In its previous comments, the Committee had noted that in implementation of section 77 of Act No. 83-112 of 12 December 1983 to issue the general conditions of service of employees of the State, of local communities and of public administrative establishments, Prime Minister's Circular No. 3 of 31 January 1984 with respect to the procedure for applying the provisions of the above Act, section 45 of Act No. 67-29 of 14 July 1967 concerning the organization of the judiciary, and section 27 of Act No. 67-20 of 31 May 1967 issuing the general conditions of service of members of the armed forces, resignation requests from civilian officials and military personnel come into effect only once they have been accepted by the head of the relevant administration. In the absence of any express provision, the period applied is two months, as specified in section 37 of Act No. 96-39 of 3 June 1996 concerning appeals on grounds of exceeding authority. In cases where the resignation request is rejected, the official concerned can bring a case before the Joint Administrative Committee which then transmits a reasoned opinion to the competent authorities. A new period of two months then begins at the end of which, in the absence of any reply from the administration, the resignation request is deemed to have been implicitly rejected. Express or tacit rejection of a request can give rise to an appeal to the administrative court on grounds of exceeding authority. The Committee took note of this detailed information, and asked the Government to provide a copy of Act No. 96-39 of 3 June 1996.

The Committee notes that as regards the Joint Administrative Committee, no deadline is set for the transmission of its opinion to the competent authority. The Committee requests the Government to provide clarification on this point.

In its previous comment, the Committee had noted the information to the effect that in cases where a number of appeals are rejected, the official concerned is free to abandon his post, in which case the administration is obliged to dismiss him. In this regard, the Committee notes that according to section 79 of Act No. 83-112 of 12 December 1983, "an official who ceases to perform his duties before the date fixed as part of the decision to accept his resignation shall be liable to disciplinary sanctions". The Committee notes also that under the terms of Circular No. 3 of 31 January 1984, "an official who abandons his post without requesting leave to resign automatically places himself outside the scope of the Act and shall be removed from his post without benefit of any disciplinary safeguards". As regards the internal security forces, the Committee notes that according to section 70(3) of Act No. 82-70 of 6 August 1982, "an agent of the internal security forces who ceases to carry out his duties before the date set for the definitive termination of his service shall be subject to disciplinary sanctions of the second degree", such sanctions including, under the terms of section 50, paragraph 2(b) of the Act, loss of pension entitlements. The Committee requests the Government to take steps to ensure that public servants are not obliged to abandon their post, given the penalties to which such an action can give rise, and can exercise their right to resign on good terms, in particular by obtaining a reply from the authority concerned within a reasonable period. The Committee also requests the Government to provide practical information concerning specific cases of officials who have been obliged to abandon their posts under such circumstances.

3. As regards resignation of career members of the armed forces, the Committee had requested the Government to provide information on the measures taken to ensure that persons are not deprived of the right to leave the service in peace time within a reasonable period, either at regular intervals or with prior notice. It had also requested the Government to indicate whether Act No. 96-39 of 3 June 1996 is applicable to military personnel or, if not, what remedies are available to such personnel for decisions that exceed lawful authority. In its reply, the Government indicates that even if the general conditions of service do not provide for specific periods for accepting or refusing a resignation, under the terms of section 37 of Act No. 72-40 of 1 June 1972 regarding the administrative court, which was amended by Act No. 96-39 of 3 June 1996 and is applicable to military personnel, silence by the authority concerned is deemed to be tantamount to a tacit refusal, which means that the individual concerned can bring the case before the administrative court on grounds of exceeding authority, within reasonable deadlines which ensure that the individual has the right to resign.

The Committee had asked the Government to provide information in relation to Decree No. 91-559 of 23 April 1991 to organize the air force, specifically, on the possibilities available for student officers who have been admitted to the air force academy before they have attained the age of majority (section 32) to be released from their obligations once they have attained the age of majority. The Committee notes that according to the Government, nothing in the provisions of the Decree prevents students from being released from their obligations. In all cases, they retain their right to bring a complaint before the administrative court for exceeding authority under section 37.

The Committee requests the Government to provide further information on the practical application of these provisions, attaching where appropriate copies of relevant rulings of the administrative court.

4. Article 2, paragraph 2. In its previous comments, the Committee asked the Government to provide information on the practical application of Decree No. 1232 of 1 August 1990 fixing the procedures for the detachment of national service conscripts, in particular on the total strength made available for two types of assignment (for public and private employers) each year by the Minister of National Defence (section 4 of the Decree). The Committee notes that in its reply the Government merely reproduces the terms of section 2 of the Decree, and trusts that the Government will supply the information requested in its next report.

5. Article 2, paragraph 2(a). With regard to development work assigned to recruits in the context of military service, the Committee had recalled that compulsory military service is excluded from the scope of the Convention only if it is effected for purely military work (see 1979 General Survey on the abolition of forced labour, paragraph 24). Since there has been no reply from the Government on this point, the Committee again requests the Government to indicate measures taken or envisaged to ensure that the Convention is respected in this regard.

6. Article 2, paragraph 2(d). In its previous comments, the Committee had noted that section 1(3) of Act No. 89-51 of 14 March 1989 respecting national service provides that "citizens who are not subject to national service obligations may be called up individually as civilian conscripts ... to work in the administrative, economic, social and cultural services, if the need arises". In the Committee’s view, such a provision does not appear to limit the power of conscription to the cases of extreme need. The Committee again requests the Government to take the necessary measures to amend section 1(3) of Act No. 89-51 so as to limit recourse to conscription strictly to cases of emergency, as provided for by the Convention.