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

The Committee takes note of the information provided by the Government concerning section 26 of Decree No. 2-00-485 of 3 November 2000, which allows prisoners to be employed outside the penal establishment on work of general interest. According to the Government, this work is carried out for the State or public associations and may not be performed for the benefit of private individuals or companies.

Articles 1(1) and 2(1) of the Convention. 1. Trafficking in persons. In its previous comments, the Committee requested the Government to specify the provisions of the national legislation under which those responsible for the trafficking of persons in general, and not only young persons, whether for sexual exploitation or labour exploitation, can be prosecuted and penalized. Referring to the report of the Special Rapporteur on the Human Rights of Migrants of the United Nations Commission on Human Rights, which called upon the Government “to acknowledge the existence of prostitution and of the exploitation of sub-Saharan migrants and to establish suitable instruments for the protection, assistance and rehabilitation of victims of trafficking in human beings” (E/CN.4/2004/76/Add.3, paragraph 78), the Committee requested information on the judicial procedures initiated against persons responsible for trafficking and on the protection provided to the victims.

In its last report, the Government refers to the provisions of the Penal Code which incriminate prostitution and procuring, as well as to Act No. 02-03 concerning the entry and residence of foreigners in the Kingdom of Morocco, illegal emigration and immigration. The Government also refers to the setting up of cooperation mechanisms and partnerships to dissuade clandestine migration movements (strengthening bilateral cooperation in legal matters and between the Moroccan police force and its counterparts in destination countries; awareness campaigns conducted by the media and NGOs). While noting this information, the Committee observes that the legislation still does not contain provisions specifically condemning the trafficking of persons. It hopes that the Government will take the necessary measures to adopt the relevant legislation in this respect in the very near future. In order to combat effectively this phenomenon, it is vital that the legislation should specifically define what constitutes the trafficking of persons, both for the purposes of exploitation of their work and sexual exploitation, and provide for dissuasive penalties to punish perpetrators. The Committee is aware of the difficulties encountered by Morocco, a traditional emigration country, which has become in the past few years a transit country for a considerable migration flow from sub‑Saharan Africa to Europe. In this respect, the Committee stresses that it is important to identify, from among the illegal immigrants, those who are victims of trafficking and exploited for their work, on account of their vulnerable situation. The Committee requests the Government to provide detailed information on the measures taken to identify these victims to encourage them to go to the authorities to denounce their situation and to guarantee them protection. The Government is also asked to indicate the activities carried out to raise awareness on these issues among the competent authorities (police force and judicial authorities), and the difficulties encountered by these authorities. Finally, the Committee would like the Government to provide information on the court decisions handed down in the case of individuals involved in the trafficking in persons, specifying the nature of the penalties imposed.

2. Freedom of public servants and career members of the armed forces to terminate their employment. Under sections 77 and 78 of the Dahir of 24 February 1958, establishing the general conditions of employment of the public service, the resignation of an official does not come into effect unless it is accepted by the authority vested with the power of nomination. In the event of refusal, the person concerned may bring the case before the Joint Administrative Committee. Noting the criteria applied in accepting or rejecting a resignation request (needs of the service and impossibility of finding a replacement for the official who is resigning), the Committee had requested the Government to amend the legislation with a view to restricting the possibility of preventing an official from leaving his or her employment to emergency situations and to ensure the freedom of officials to terminate their employment by giving reasonable notice. In its last report, the Government points out that the Ministry of the Public Service considers that section 77 takes account of the balance that must exist between the principle of the continuity of public service and the right of civil servants to leave their employment. It adds that, in the majority of cases, the public administrations accept the resignation requests from officials. Finally, in the context of the reform of the public administration, an operation was launched in January 2005 to enable various categories of public servants to profit from “voluntary departures”, accompanied by a severance allowance; they also upheld their retirement benefits. The Committee takes note of this information and the fact that 40,000 public servants profited from this operation. It requests the Government to specify whether this operation of voluntary departures is still continuing. It also hopes that the Government will take the necessary measures, for example by issuing instructions in this respect, to ensure that, if a resignation request is turned down on the grounds of the needs of the service or the impossibility of finding a replacement, the competent authority will ensure that the official is not kept on in his or her employment beyond a reasonable deadline. The Government is asked to provide information on the number of requests for resignation turned down and the circumstances prompting these refusals.

3. Persecution of vagrancy. For a number of years, the Committee has been drawing the Government’s attention to section 329 of the Penal Code which gives too broad a definition of vagrancy which could constitute an indirect means of forcing a person to work. A vagrant, who is liable to a prison sentence of one to six months, is defined as “any person without a fixed home or means of subsistence, who does not normally exercise an occupation or trade despite being able to do so and who is unable to show evidence of having sought employment, or has refused paid work when it has been offered”. The Committee had noted the information provided by the Government, according to which this section did not apply to persons without employment or who had their own means of subsistence, such as an inheritance, nor to persons who had sought employment without success, but only applied to persons whose failure to work was likely to become a nuisance to others, particularly if they had no abode or means of subsistence. It had also noted that none of the convictions for vagrancy cited by the Government related to convictions based on the mere offence of vagrancy alone. On the contrary, they related to convictions for the offence of vagrancy accompanied by other offences, including acts of violence, robbery or attempted robbery and begging.

In its last report, the Government points out that, following the visit of an ILO multidisciplinary team to Morocco in December 2006, the Ministry of Labour and the Ministry of Justice have made contact with a view to examining possible ways of bringing national legislation in line with the Convention. The Committee takes note of this information and hopes that these initial contacts will result in the adoption of specific measures to amend the provisions of section 329 of the Penal Code, so as to ensure that the legislation reflects the practice followed by the courts and to guarantee that persons with no fixed address or means of subsistence, who are not engaged in any occupation or trade, and who are not disturbing the public order or security in any way, cannot be classified as vagrants.

Article 2(2)(c). Prison labour. Prisoners hired to or placed at the disposal of private individuals or companies. In reply to the Committee’s comments, the Government points out that the prison administration has never applied the possibility provided under section 40 of Act No. 23-98 concerning the organization and operation of penal establishments. This section provides that no prisoner can work for a private individual or company, unless this is under a concession or an administrative agreement fixing the conditions of employment and remuneration. The Committee takes note of this information. It would like the Government to indicate, in its next reports, whether the prison administration has amended, or envisages amending, its practice, by entering into administrative agreements with private enterprises in order to assign prison labour. In this respect, it recalls that the employment of prisoners by private persons can only be compatible with the Convention if the conditions under which the work is carried out approximate those of a free labour relationship.