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Worst Forms of Child Labour Convention, 1999 (No. 182) - Cuba (Ratification: 2015)

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Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 3(a) and 7(1) of the Convention. Worst forms of child labour. Penalties. 1. Sale and trafficking of children. The Committee previously noted that section 316 of the Penal Code establishes penalties of imprisonment for the sale and transfer of persons under 16 years of age, including under any of the forms of international trafficking related to acts of corruption, pornography, prostitution and forced labour. In this regard, the Committee recalled that the Convention protects all persons under 18 years of age from the sale and trafficking of persons for sexual or labour exploitation and requested the Government to adopt the necessary measures to ensure that children between the ages of 16 and 18 years also benefit from this protection.

The Committee takes due note of the full information provided by the Government in its report on the prevention of the trafficking of children and young persons, and particularly that: (i) the Ministry of Education has taken action to increase knowledge by managers and teachers of the crime of trafficking in persons, with a view to achieving greater precision in the identification and care provided to children and young persons; (ii) the Office of the Public Prosecutor has issued internal rules and procedures to improve the action taken to address the crime of trafficking in persons and protect victims under 18 years of age; and (iii) the Ministry of Public Health has undertaken information campaigns on indicators of possible victims of trafficking in persons. The Committee also notes the Government’s indication that 25 victims of trafficking in persons for sexual and labour exploitation were identified in 2019, of whom nine were children.

With reference to the establishment of criminal penalties, the Committee notes that, although section 302(3) of the Penal Code provides for sentences of imprisonment for the crime of organizing or inciting the entry or exit from the country of persons (of any age) for the purpose of them engaging in prostitution, the Government has not provided information on the legislative provisions which penalize trafficking in persons between the ages of 16 and 18 years for labour exploitation or the internal trafficking of such persons for sexual exploitation. In this regard, the Committee notes that the United Nations Special Rapporteur on trafficking in persons, especially women and children, in her 2018 report on her mission to Cuba, indicated that children are subject to internal trafficking for sexual exploitation, including children as young as 10 who are forced by family members or close relatives to have sexual relations with Cuban and foreign nationals in exchange for money to maintain the family. She added that young victims are taken out of Cuba for labour exploitation through false offers of employment as waiters, dancers or manicurists and expressed concern at the fact that the trafficking of children is not comprehensively addressed in the legal framework (A/HRC/38/45/Add.1, paragraphs 12, 15 and 32). The Committee therefore once again requests the Government to take all the necessary measures to bring the legislation into conformity with Article 3(a) of the Convention so as to protect all children under 18 years of age from the sale and trafficking of persons (both internal and international) for sexual or labour exploitation. While awaiting the adoption of such measures, the Committee requests the Government to provide updated statistical data on the number of investigations, prosecutions and penalties imposed for the crime of the trafficking of children and young persons under sections 302(3) and 316 of the Penal Code.

2. Forced labour. In its previous comments, the Committee requested the Government to indicate whether there are legal provisions specifically prohibiting the forced or compulsory labour of children under 18 years of age. In this regard, the Government indicates that the 2019 Constitution prohibits work by children and young persons (article 66), but does not refer to legislative provisions that establish criminal penalties for the exaction of forced labour from persons under 18 years of age.

Clause (b).Use, procuring or offering of children for prostitution or for pornography. In its previous comments, the Committee noted that section 310 of the Penal Code establishes prison sentences for the use of persons under 16 years of age for prostitution or pornography, and requested the Government to take the necessary measures to extend this protection to all young persons under 18 years of age, in accordance with the Convention. The Committee notes the absence of information on this subject and recalls that, under the terms of Article 3(b) of the Convention, the use, procuring or offering of a child for prostitution is one of the worst forms of child labour and that, under Article 1, this worst form of child labour shall be prohibited as a matter of urgency. The Committee once again requests the Government to take the necessary measures to prohibit and punish the use, procuring or offering of children under 18 years of age for prostitution, the production of pornography or pornographic performances.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. In its previous comments, the Committee requested the Government to indicate whether legislative provisions existed which prohibit the use, procuring or offering of children under 18 years of age for illicit activities, in particular for the production and trafficking of drugs. In this regard, the Committee notes the Government’s indication that section 190(3) of the Penal Code establishes penalties of imprisonment of from 15 to 30 years for any person who uses children under 16 years of age for the trafficking of drugs, narcotics, psychotropic substances or other similar purposes. The Committee requests the Government to take all the necessary measures to also prohibit the use of persons between 16 and 18 years of age for illicit activities, in particular the production and trafficking of drugs.

Article 5. Monitoring mechanisms. In response to the request for information on the activities of the labour inspection services for the detection of situations involving the worst forms of child labour, the Committee notes the Government’s indication that labour inspectors have received training for the detection of potential cases and the prevention of the worst forms of child labour. It notes that, during the period between June 2018 and June 2021, some 69 establishments were inspected in which 147 young persons who work and are between the ages of 15 and 18 years, and young persons under 18 years of age performing hazardous types of work were detected in ten cases. In each case, measures were ordered for the elimination of the violations identified and the imposition of penalties on the offenders was sought. The Committee requests the Government to continue providing information on the results of labour inspections in relation to the worst forms of child labour, including extracts from reports indicating the nature and extent of the violations detected.

Article 7(2). Effective and time-bound measures. Clause (b). Providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. The Committee notes the Government’s indication that the Department for the Protection of the Family and Jurisdictional Matters of the Office of the Public Prosecutor provides assistance to children and young persons who are victims of any type of crime, in coordination with their families. It notes the existence of Child and Young Person Protection Centres (CPNNA) in La Habana, Santa Clara and Santiago de Cuba for the provision of therapeutic care for such victims, and in places where such Centres do not exist, alternatives are adopted to undertake monitoring with Child Assessment, Analysis and Guidance Centres. During the period 2018–19, the CPNNA and alternative centres in the other provinces provided protection to 2,350 child victims of acts of sexual abuse. The Committee observes that, in her 2018 report, the United Nations Special Rapporteur on trafficking in persons, especially women and children, reported that children between the ages of 16 and 18 years who engage in prostitution are detained in “rehabilitation centres”, where they are subject to restriction of movement and can be sentenced by the courts (A/HRC/38/45/Add.1, paragraph 51). The Committee requests the Government to continue providing information on the measures adopted to ensure that victims of the worst forms of child labour receive direct and appropriate assistance and are removed, rehabilitated and reintegrated, and the results achieved. In this regard, it once again requests the Government to provide information on the measures adopted to ensure that all children under 18 years of age who are victims of commercial sexual exploitation are provided with such assistance and are not treated as offenders.

Article 8. International cooperation. The Committee notes the Government’s indication that the Ministry of the Interior has concluded agreements to promote cooperation with its foreign counterparts for the protection of children and young persons against sale, prostitution, use in pornography and trafficking in persons. The Committee requests the Government to provide information on the measures implemented under the terms of these agreements and their results.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the Government’s first report.

Article 3 of the Convention. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children. The Committee notes the Government’s indication in its report that section 316(1) to (4) of the Penal Code prohibits the sale and trafficking of minors. Section 316(1) establishes a penalty of between two and five years of imprisonment for the sale of a minor under 16 years of age to another person in exchange for recompense, financial compensation or other benefits. Section 316(3) provides that the sentence of imprisonment shall be between seven and 15 years when the sale of the minor occurs in the context of international trafficking, for acts of corruption, pornography, prostitution, forced labour, activities related to drug trafficking or the consumption of drugs. The Committee notes that, according to the Government in its report on the application of the Forced Labour Convention, 1930 (No. 29), a National Plan of Action to Combat Trafficking in Persons and Protect Victims (2017–20) has been adopted. It notes that the “zero tolerance” policy covers all types of trafficking and other crimes related to sexual, labour or other types of exploitation. The Government adds that the General Directorate of Investigation and Operations (DGICO) deals with victims of trafficking, and particularly with children and young persons. In this process, the officials of the Forensic Medicine Institute are responsible for assessing the physical and psychological damage to victims in order to recommend treatment and appropriate follow-up. However, the Committee notes that, in its concluding observations of 30 October 2015, the Committee on the Rights of the Child concerning the application of the Optional Protocol on the sale of children, child prostitution and child pornography expressed concern that the offence of corruption of minors is limited to cases involving a child under the age of 16 years (CRC/C/OPSC/CUB/CO/1, paragraph 25). The Committee recalls that, in accordance with Article 3(a) of the Convention, the sale and trafficking of children is one of the worst forms of child labour and that under the terms of Article 2, the term “child” shall apply to “all persons under the age of 18”. Noting that the provisions abovementioned exclusively cover children under 16 years of age, the Committee requests the Government to take the necessary measures to ensure that children between the ages of 16 and 18 years are also protected against sale and trafficking for sexual and labour exploitation. The Committee also requests the Government to indicate the manner in which the National Plan of Action to Combat Trafficking in Persons and Protect Victims (2017–20) envisages action to combat trafficking in children under 18 years of age.

2. Forced or compulsory labour. The Committee notes that the Constitution and the Penal Code do not explicitly prohibit forced or compulsory labour by children. The Committee requests the Government to indicate whether there are legal provisions specifically prohibiting the forced or compulsory labour of children under 18 years of age. If not, it requests the Government to indicate the measures taken or envisaged for the adoption of such provisions in the national legislation.

Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. The Committee notes that section 310 of the Penal Code prohibits the use, offering or procuring of minors under 16 years of age for prostitution or the practice of acts of corruption, heterosexual or homosexual pornography or other dishonest types of behaviour. Violation of this provision is punishable by a sentence of imprisonment of from seven to 15 years, increased to between 20 and 30 years if the victim is a minor under 12 years of age. The Committee also notes from the Government’s report on the application of Convention No. 29 the indication that the Federation of Cuban Women (FMC) organized educational discussions in 2015 on procurement for 729 families authorized to rent rooms to tourists. The Committee recalls that, in accordance with Article 3(b) of the Convention, the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances is one of the worst forms of child labour and that, under the terms of Article 2, the term “child” applies to “all persons under the age of 18”. The Committee therefore requests the Government to take the necessary measures to ensure that the relevant provisions protect all children under 18 years of age, and not only those under 16.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that sections 311, 313 and 314 of the Penal Code establish penalties for any person who supplies drugs to a minor under 16 years of age or encourages their consumption. However, the Government does not indicate whether the law explicitly prohibits the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, as defined in the relevant international treaties. The Committee therefore requests the Government to indicate whether the legislation prohibits the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, as defined in the relevant international treaties. If not, the Committee requests the Government to take the necessary measures for the inclusion of such a prohibition in the law.

Clause (d) and Article 4. Hazardous work and determination of hazardous types of work. In its 2014 observation on the application of the Minimum Age Convention, 1973 (No. 138), the Committee observed that, under section 16(2) of Decision No. 8/2005 of 1 March 2005 issuing the General Regulations on labour relations, the list of jobs involving risks for young persons under 18 years of age is drawn up in an appendix to the collective labour agreement.

Article 5. Monitoring mechanisms. The Committee takes due note of the Government’s indication that the National Labour Inspection Office is under the control of the Ministry of Labour and that the labour inspection services are responsible for monitoring the application of labour law and imposing the penalties established by law on offenders. The Government adds that labour inspectors have received special training to detect cases of child labour and that no violations have been detected so far. The Committee requests the Government to provide information on the activities of the labour inspection services, the National Labour Inspection Office and any other body responsible for ensuring the eradication of the worst forms of child labour. It also requests the Government to provide information on the existence or creation of other bodies responsible for ensuring the eradication of the worst forms of child labour.

Article 6. Programmes of action. The Committee takes due note of the Government’s indication that there are various social programmes guaranteeing the right of everyone to basic necessities so that no one needs to have recourse to child labour.

1. Preventive activities, assistance and social work. According to the Government’s report, labour directorates in the provinces and at the municipal level include departments responsible for preventive action, assistance and social work. Their action is also intended to detect minors in a vulnerable situation with a view to transforming the causes of such vulnerability and helping the community and families to prevent them from becoming engaged in child labour. The Committee requests the Government to provide information on the number of children in situations of vulnerability to child labour who are identified and who have benefited from preventive action, assistance and social work.

2. National Plan of Action for Children, Young Persons and their Families. The Committee notes the reference by the Government to the establishment of a National Plan of Action for Children, Young Persons and their Families for the period 2015–20, in collaboration with various State institutions, local authorities, representatives of civil society, organizations of children and young persons and UNICEF. It requests the Government to provide information on the objectives of the National Plan of Action and on the results achieved in terms of eliminating the worst forms of child labour.

Article 7(1). Sanctions. The Committee notes that, under section 234 of the Regulations giving effect to the Labour Code, the penalty imposed on employers found in violation of the Labour Code is 2,000 Cuban pesos (CUP) (approximately US$75), which is doubled in the event of a repeated offence. Moreover, in cases of violation, section 231 of the Regulations empower the labour inspectorate to directly: (i) issue an injunction for the cessation of any violation; (ii) order the immediate confiscation of equipment and machinery or the closure of the workplace or work centre considered to be hazardous for the safety and health of workers, the population as a whole, or both; and (iii) penalize persons or associations in the private sector. Section 232 of the Regulations specifies that the administrative or disciplinary measures taken by the labour inspection services must be proportionate to the gravity of the offence, that a temporary or permanent suspension of the permit granted to the employer may be ordered by the competent bodies and that a penal procedure shall be initiated in the event of a fatal accident. However, the Committee notes that, in its concluding observations, the Committee on the Rights of the Child noted with concern the small percentage of cases of prostitution and child pornography that lead to prosecution and criminal sanctions (CRC/C/OPSC/CUB/CO/1, paragraph 29). The Committee requests the Government to ensure that in-depth investigations and effective prosecutions are carried out against those responsible. It also requests the Government to provide information on the penalties imposed in practice and the number of violations recorded.

Article 7(3). Designation of the competent authority. The Committee notes that the Committee on the Rights of the Child, in its concluding observations, welcomed the appointment of the First Vice-President as the national authority responsible for monitoring and coordinating issues related to children’s rights. However, it expressed concern at the lack of clarity and the duplication of structures responsible for the implementation of children’s rights (CRC/C/OPSC/CUB/CO/1, paragraph 13). The Committee requests the Government to provide information on the activities of the First Vice-President and their impact on the implementation of the provisions of the Convention.

Article 8. International Cooperation. The Committee notes the Government’s indication that Cuba is part of the Latin America and the Caribbean Free of Child Labour Regional Initiative, the objective of which is to reinforce inter governmental cooperation to combat child labour through prevention and intra and intersectoral institutional coordination. The Government also refers to a 2014–18 cooperation project between Cuba and UNICEF and another cooperation project entitled “Dissemination of the rights of children and young persons”, which has been in place since 2000 and has raised awareness among the population concerning international treaties on the protection of children and young persons and the need for collective action. In its report on the application of Convention No. 29, the Government indicates that it is currently considering to adopt a Memorandum of Understanding with Canada on cooperation in relation to the sexual abuse of children with a view to combating prostitution, the sale and trafficking of children and their use in pornography. The Committee requests the Government to provide information on the measures adopted for the implementation of the Regional Initiative. It also requests the Government to provide information on the content of the two cooperation projects with UNICEF, with an indication of the results achieved in the elimination of the worst forms of child labour. Finally, the Committee requests the Government to indicate whether the memorandum of understanding with Canada has been finalized and to provide information in this regard.

Application in practice. The Government indicates that it has not encountered difficulties in the application of the Convention in practice. However, the Committee notes that the Committee on the Rights of the Child, in its concluding observations, noted with concern the absence of a comprehensive system of data collection for the gathering of information (CRC/C/OPSC/CUB/CO/1. paragraph 7). The Committee requests the Government to take the necessary measures to ensure that up-to-date statistical data are available on the worst forms of child labour in order to provide an overview of the situation of children in the country and as a basis for assessing the application of the Convention in practice. To the extent possible, this data should be disaggregated by age and by gender. It also requests the Government to indicate whether studies have been carried out to assess the extent of child labour in the country.