Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Repetition

Article 1(d) of the Convention. Penalties involving compulsory labour for participating in strikes. The Committee previously noted that, pursuant to Labour Proclamation No. 118/2001, participation in unlawful strikes is considered an unfair labour practice (Article 119(8)) and is punishable with fines (Article 156), unless, in certain cases, the provisions of the Penal Code provide for more severe penalties (Article 154). Under Articles 412 and 413 of the Transitional Penal Code of 1991, participation in strikes by public servants with the intention of disturbing public order or the public interest is punishable with imprisonment. Moreover, under Article 110 of the Transitional Penal Code, persons who are convicted to imprisonment are subject to the obligation to work in prison. While noting the Government’s indication that Article 413 of the Transitional Penal Code is only applicable in cases of participation in unlawful strikes, the Committee recalls that, in all cases and regardless of the legality of the strike action in question, any sanctions imposed should not be disproportionate to the seriousness of the violations committed, and that the authorities should not have recourse to measures of imprisonment against persons peacefully organizing or participating in a strike (see General Survey on the fundamental Conventions, 2012, paragraph 315).

In its report, the Government once again indicates that Article 413 of the Transitional Penal Code is only applicable to persons who participate in unlawful strikes and that it does not concern workers organizing a peaceful strike. The Government considers that the right to strike is one of the essential means available to workers and their organizations to further their interests. It adds that no civil servant in Eritrea can be punished with imprisonment involving an obligation to work under Articles 412 and 413 of the Transitional Penal Code. However, the participation in strikes by public servants with the intention of disturbing public order or the public interest may be punishable by simple imprisonment or a fine.

The Committee notes this information and the fact that none of the provisions referred to above has been applied in practice as no strike has been declared. The Committee nevertheless draws the Government’s attention to the fact that a strike may be declared unlawful for reasons relating to lack of compliance with certain procedural requirements, without those organizing it and participating in it jeopardizing public order or the strike losing its peaceful nature. Furthermore, the provisions of Article 413 (disorganization of the service by striking), by referring to disturbing public order or state services, may be broadly interpreted and serve as a basis for the imposition, for participation in a strike, of sentences of imprisonment under which, in accordance with Article 110 of the Transitional Penal Code, work may be imposed. The Committee therefore expresses the firm hope that the Government will take the necessary measures, particularly in the context of the new Penal Code, to ensure that the legislation does not contain provisions which could be used by the courts to convict persons organizing or participating peacefully in a strike to sentences of imprisonment.

Communication of legislative texts. The Committee notes the Government’s indication that the process of the revision of the transitional legislative texts in the country was completed in May 2015 and that the new Penal Code will be communicated once it is published. Noting that the Government does not refer in its report to any provision of the new Penal Code, the Committee requests it to specify whether the new Code has entered into force and, if so, to provide a copy. It also once again requests the Government to provide copies of the provisions implementing the Constitution and governing political parties.