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

Articles 1 (paragraph 1), and 2 (paragraph 1), of the Convention. Provisions concerning vagrancy. The Committee previously noted that a provision concerning vagrancy contained in the old Criminal Code had not been included into the new Criminal Code of 2000. However, the Committee noted that vagrancy is still punishable under section 307.1 of the Code of Administrative Offences, which provides that, under certain conditions, the persons concerned may be taken into administrative custody for a term of up to ten days. It has also noted the Government’s repeated indications in its reports that section 307.1 is applicable to persons without a definite place of living or means of subsistence, who do not have employment (without having an official status of unemployed) and gain their income by pilfering and mendicancy.

While taking due note of this information, the Committee observes that section 307.1 is worded in such general terms as to lend itself to application as a means of indirect compulsion to work. The Committee again draws the Government’s attention to the explanations in paragraph 88 of its General Survey of 2007 on the eradication of forced labour, where it has considered that the provisions imposing penalties for mere refusal to work are contrary to the Convention and should be either repealed or amended so as to limit their scope to the unlawful activities.

The Committee reiterates its hope that the necessary measures will be taken with a view to clearly excluding from the legislation any possibility of compulsion to work, e.g. by limiting the scope of section 307.1 of the Code of Administrative Offences to persons engaging in illegal activities (pilfering, etc.), so as to bring the legislation into conformity with the Convention. Pending the adoption of such measures, and noting also the Government’s indications concerning the meaning of ”vagrancy” in section 307.1, the Committee requests the Government to supply information on the application of this provision in practice, including copies of any court decisions which could define or illustrate its scope.

Article 2, paragraph 2, subparagraph (a). Work exacted under compulsory military service laws for non-military purposes. In its earlier comments, the Committee referred to section 9(1) of the Act on the Status of Military Personnel, 1991, under which military servicemen, during the period of their service, may be made to perform work or other tasks not related to military service, in accordance with the procedure laid down by the President of the Azerbaijan Republic. The Committee has noted the Government’s repeated statement in its reports that the armed forces may be called upon to fulfil duties which do not relate to their direct obligations, following the decision of Parliament and at the request of the President of the Republic, e.g. during a state of emergency.

In its latest report received in 2008, the Government confirms its previous indication that the abovementioned provisions have not been applied in practice. The Government also states that, in its view, such provisions are not in contradiction with the Convention and the Constitution of the Republic of Azerbaijan, which allow the exaction of compulsory work or service under compulsory military service laws and in cases of emergency.

While noting these views and comments, the Committee again recalls that, under Article 2(2)(a) of the Convention, work or service exacted by virtue of compulsory military service laws may only be excluded from the prohibition of forced labour if such work or service is of a purely military character. The Committee also draws the Government’s attention once again to the explanations in paragraphs 43–46 of its General Survey of 2007 on the eradication of forced labour, in which it pointed out that the use of conscripts for non-military purposes may be permitted only in cases of emergency, as defined in the Convention. It may be also mentioned in this connection that the provisions of the Convention relating to compulsory military service do not apply to career military servicemen, and the Convention consequently is not opposed to the performance of non-military work by persons serving in the armed forces on a voluntary basis.

In the light of the above considerations, the Committee reiterates its hope that measures will be taken, e.g. on the occasion of a possible future revision of the legislation, to indicate clearly that conscripts undergoing compulsory military service may be used only for purely military ends, with the exception of the emergency situations. Pending the revision, the Committee requests the Government to provide any information on the application of the abovementioned section 9(1) in practice, if and when such information becomes available.

Article 2, paragraph 2, subparagraph (c). Work of prisoners for private enterprises. The Committee previously noted that, under section 95.1 of the Code on the Execution of Penal Sentences (2000), every convicted person is under an obligation to work, such work being exacted from convicts either at enterprises and workshops of the penitentiary institutions or at other enterprises, outside the penitentiary institution, including private enterprises. As regards conditions of work of convicted persons, the Committee noted that they are governed by the general labour legislation and may be considered as approximating those of a free labour relationship, including remuneration and social security rights. The Committee has also noted the Government’s repeated indication in its reports that the work of convicts at the enterprises outside the penitentiary institution is carried out under the supervision of the Ministry of Justice.

As regards prison labour for private enterprises, the Committee again draws the Government’s attention to the provisions of Article 2(2)(c) of the Convention, which expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers, even under public supervision and control. In fact, under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are applied cumulatively, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations. While noting the Government's indication that, in conformity with the first condition set out in Article 2(2)(c) of the Convention, the work is carried out “under the supervision and control of a public authority”, the Committee observes that the second condition, namely, that the person “is not hired to or placed at the disposal of private individuals, companies or associations”, does not appear to be fulfilled.

However, while Article 2(2)(c) of the Convention strictly prohibits that prisoners be hired to or placed at the disposal of private enterprises, the Committee has considered, as explained in paragraphs 59 and 60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be compatible with Article 2(2)(c) only where prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal consent of the person concerned and, in the light of the circumstances of the consent, i.e. the basic obligation to perform prison labour, and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation, such as wages and social security. If the above conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved.

While noting that, under the Code on the Execution of Penal Sentences, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observes that, under the legislation in force, the formal consent of prisoners to work for private enterprises does not appear to be asked for.

The Committee therefore hopes that, in the light of the above considerations, the Government will take the necessary measures in order to ensure that, both in the legislation and in practice, the work of prisoners for private enterprises is carried out only with their voluntary consent, such consent being free from the menace of any penalty, including the loss of rights or privileges. The Committee also requests the Government to supply sample copies of contracts concluded between a private enterprise and a penitentiary institution concerning the work of convicted prisoners.

Article 2, paragraph 2, subparagraph (d). Legislation concerning emergency situations. While noting the Government’s indication in the report that the relevant provisions have not been applied in practice during the reporting period, the Committee once again requests the Government to supply, with its next reports, a copy of the Law on the state of emergency, which was adopted and entered into force in 2004.

Articles 1 (paragraph 1), 2 (paragraph 1), and 25, of the Convention. Trafficking in persons. Referring to its earlier comments, the Committee notes with interest the adoption by the Cabinet of Ministers of the following Decrees for the purpose of implementation of the Law on combating trafficking in human beings: Regulations on social rehabilitation of the human trafficking victims of 6 March 2006 (No. 62); on the rules concerning the establishment of specialized enterprises for the human trafficking victims, their activities, financing and supervision of 9 November 2005 (No. 203); and on the calculation of the allowances for the human trafficking victims of 17 June 2006 (No. 152). It also notes with interest the adoption of the new section 144-1 of the Criminal Code punishing a crime of human trafficking and related crimes with sentences of imprisonment ranging from five to 15 years.

The Committee requests the Government to provide information on the penal proceedings which have been instituted under section 144-1 of the Criminal Code and on the penalties imposed on perpetrators. Please also provide information on the application in practice of Decrees Nos 62, 152 and 203 referred to above, as well as information on any other measures to prevent, suppress and punish trafficking in persons for the purpose of exploitation, taken in accordance with the National Plan of Action against Human Trafficking of 2004.