Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Repetition

Articles 1(1) and 2(1) of the Convention. Freedom of career military personnel to leave their service. The Committee notes that the Government’s report contains no information on this issue. It therefore requests the Government once again to provide information on provisions applicable to professional military officers and other career servicemen as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(a). Services exacted under compulsory military service laws. The Committee previously noted that, by virtue of section 36 of the Constitution of Kazakhstan, citizens perform military service in accordance with the law. It requested the Government to supply copies of laws concerning compulsory military service and, eventually, alternative (non-military) service. Since the texts governing the above matters have not yet been supplied, the Committee reiterates its hope that the Government will not fail to communicate them with its next report. As regards compulsory military service, please also indicate what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends.

Article 2(2)(c). Prison labour. The Committee notes that the Government’s report contains no reply to its earlier comments concerning this issue. It therefore requests the Government to include, in its next report, full information on the following matters raised in its previous direct request.

The Committee previously noted that penal sanctions of deprivation of freedom and restriction of freedom (sections 48 and 45 of the Criminal Code) involve compulsory labour under the procedures and conditions defined by the Code governing the execution of penal sentences, 1997 (sections 99 and 47). The Committee also noted that compulsory labour of convicted persons may be exacted at enterprises and organizations “of various forms of ownership” and observed that the wording of sections 99 and 47 does not seem to exclude that convicted persons may be hired to or placed at the disposal of private enterprises, contrary to the provision of Article 2(2)(c) of the Convention.

While this Article strictly prohibits convicted persons from being hired to or placed at the disposal of private undertakings, the Committee has pointed out in paragraphs 59–60 of its 2007 General Survey on the eradication of forced labour that, provided convicted prisoners voluntarily consent to such work, without being subjected to pressure or the menace of any penalty, such work does not fall within the scope of the Convention. However, the Committee has indicated that, bearing in mind the captive circumstances of prisoners, there must be safeguards to ensure that their consent is given freely and voluntarily. As the Committee has pointed out in paragraphs 114–122 of its 2007 General Survey referred to above, the most reliable indicator of voluntariness of labour is the work performed under conditions which approximate a free labour relationship. Factors to be taken into account in such circumstances would include, for example, wage levels (leaving room for deductions and attachments), social security and occupational safety and health.

In the light of the above explanations, the Committee again requests the Government to indicate whether convicted persons serving prison sentences which involve an obligation to work may work in workshops run by private enterprises inside or outside the penitentiary institutions, and if so, on what terms and conditions, supplying copies of relevant texts. Please also indicate whether convicted persons serving a sentence of compulsory participation in public works (section 42 of the Criminal Code and section 30 of the Code governing the execution of penal sentences) can be placed at the disposal of private companies engaged in the execution of public works.

Article 2(2)(d). Work exacted in cases of emergency. The Committee previously noted that article 24 of the Constitution of Kazakhstan exempts from the definition of forced labour work required in the conditions of a state of emergency or war and requested the Government to indicate whether any law on the state of emergency has been adopted. Noting that a State of Emergency Law has been adopted in 2014, the Committee requests the Government to supply a copy of the relevant text, once the legislation in question has been adopted. Please also state what guarantees are provided to ensure that the power to call up labour during a state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in case of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.

Article 25. Penal sanctions for the exaction of forced or compulsory labour. The Committee takes due note of the information concerning the application in practice of the following sections of the Criminal Code: section 125(3)(b) “abduction of a person for the purpose of exploitation), section 126(3)(b) “illegal deprivation of a person’s freedom” for the purpose of sexual or other exploitation and section 128 “recruitment of persons for exploitation and trafficking”, including statistical information for the period of 2010–12, as well as the information on the penalties of imprisonment imposed on perpetrators. The Committee requests the Government to continue to provide, in its future reports, information on the application of the above provisions in practice, supplying copies of the relevant court decisions and indicating the penalties imposed.