REPRESENTATION (article 24) - CHILE - C029 - 2008

Colegio de Abogados de Chile A.G.

Closed

Display in: French - Spanish

Report of the committee set up to examine the representation alleging non-observance by Chile of the Forced Labour Convention, 1930 (No. 29), submitted under article 24 of the ILO Constitution by the Colegio de Abogados de Chile, AG

Report of the committee set up to examine the representation alleging non-observance by Chile of the Forced Labour Convention, 1930 (No. 29), submitted under article 24 of the ILO Constitution by the Colegio de Abogados de Chile, AG

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

I. Introduction
1. In a letter received by the International Labour Office on 31 October 2006, the President of the Colegio de Abogados de Chile, AG, presented a representation to the Office under article 24 of the ILO Constitution alleging non-observance by Chile of the Forced Labour Convention, 1930 (No. 29).
2. The representation concerns a Convention that has been ratified by Chile and is in force in that country. (Endnote_1)
3. The following provisions of the ILO Constitution relate to the representations procedure:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed in the case of representations is governed by the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution. (Endnote_2)
5. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General communicated the representation to the Government of Chile and brought it before the Officers of the Governing Body.
6. At its 299th Session (June 2007), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable (Endnote_3) and set up a committee to examine it, composed of Mr D. Celaya Alvarez (Government member, Argentina), Chairperson, Mr J. De Regil (Employer member, Mexico) and Ms H. Anderson Nevárez (Worker member, Mexico).
7. In accordance with the provisions of article 4, paragraph 1, of the Standing Orders, the Committee invited the Government to submit its observations on the representation before 30 October 2007.
8. The Government sent its observations in a communication which was received by the Office on 12 November 2007.
9. The Committee met in Geneva on 11 November 2008 and adopted its report.
II. Examination of the representation
A. Allegations made by the complainant organization
10. In his communication, the President of the Colegio de Abogados de Chile, AG, (hereinafter Colegio de Abogados) alleges that Chilean lawyers are obliged to work without pay for the State and/or for third parties under the menace of suspension from practising the profession for up to six months. According to the Colegio de Abogados, this constitutes a violation by Chile of the provisions of Convention No. 29, not only because the State is failing to meet its obligation to eliminate all forms of forced labour, but also because it is in violation of the freedom to work that is guaranteed under Convention No. 29, as there is no free consent on the part of the lawyers.
11. The claimant organization refers to various legal provisions that provide for and regulate the right to legal aid and assistance to the poor:
- According to article 19 of the Constitution of Chile, All persons are entitled to legal defence in the manner prescribed by law .
- Section 591 of the Organic Code of the Courts guarantees the right to legal aid and provides that Recipients shall be entitled to benefit without charge from the services of members of the judiciary and lawyers, attorneys and junior officers designated to provide services to poor litigants .
- Under section 595 of the Code, The courts shall be responsible for designating every month and on the basis of a duty roster of non-exempt candidates, a lawyer to provide legal defence on an unpaid basis in civil cases and another to provide such a defence in labour-related cases for individuals who have been awarded or are eligible to receive legal aid .
- Section 598 of the Code states that Lawyers shall be under the obligation to provide legal defence for poor people, on an unpaid basis and until proceedings are concluded, in cases assigned to them in accordance with the provisions of this Title. Lawyers may be exempted from this obligation with just cause, as determined by the judge hearing the case Any lawyer who fails to fulfil this obligation shall be sanctioned with suspension from exercising the profession for up to six months .
- Sections 18 and 19 of Act No. 19.968 of 30 August 2004 establishing family courts provide that parties may appear before the family courts without legal representation or a defence lawyer, unless otherwise instructed by the judge, for example in cases where the interests of children, teenagers or legally incompetent persons are involved. In such cases, the judge shall appoint a lawyer from the respective legal aid association or from any public or private institution dedicated to defending, promoting or safeguarding the rights of such individuals.
12. According to the complainant organization, Chilean lawyers are obliged under the abovementioned legal provisions to undertake compulsory and unpaid work for individuals. First, during their university studies, future lawyers spend one academic year working for poor people through the so-called legal clinics . This practice is common in all professions and is an essential supplement to academic studies. Then, once they have completed their university education, in order to become fully qualified as a lawyer, candidates must successfully complete a six-month work placement at one of the legal aid associations, a public service under the Ministry of Justice. This involves compulsory work without pay for the State, for the benefit of the poor. Lastly, once qualified, lawyers are obliged to continue to work without pay for individuals under the duty lawyer roster system.
13. Under the duty lawyer roster system, a list is drawn up each month of lawyers who have to be available to provide legal defence in any cases assigned by a judge which could relate to any issue or specialist field. Although in some cities in Chile the need for duty lawyers is met by newly qualified lawyers, in others there is a demand for more practitioners and consequently lawyers names may appear on the roster on a fairly regular basis, for example once or twice a year. Furthermore, given that legal proceedings can be lengthy and that, by law, legal defence has to be provided until the completion of such proceedings, it is very likely that a lawyer will still have cases pending from a previous roster period when assigned another case. Lawyers do not receive any remuneration for this defence work and have to cover the costs involved in mounting a serious and convincing defence from their own resources. Lawyers who refuse to accept such defence work are suspended from exercising the profession for up to six months, and the sanction is made public, which is damaging to the reputation of the lawyer and may lead to loss of clients.
14. The complainant organization indicates that, in the past, it supported and worked with the State to set up a system under which everyone could have access to justice. At the time, the Colegio de Abogados viewed compulsory work for candidate lawyers as a generous and ethical way of reimbursing the State s share in the cost of training lawyers, who received free education regardless of their means. For the same reason, the Colegio de Abogados agreed, in addition to professional placements for candidate lawyers, that qualified lawyers would collaborate with the State through the duty lawyer roster system. According to the organization, the situation is now different for the following reasons:
(a) University education is no longer free. All universities that teach law, whether public or private, charge fees and law students take out loans in order to pay for their university education. Thus, the ethical argument behind this measure is no longer applicable.
students
(b) Although Chile is still a developing country, its economic development over the last 25 years has meant that it has sufficient economic capacity to meet the constitutional obligation to provide its inhabitants with access to justice.
(c) With the liberalization of university education and the increase in the number of private universities, the number of lawyers admitted to the profession each year has more than tripled over the last 20 years. This has led to increased competition and a reduction in fees and therefore a heavier workload in order to match the income they received previously.
(d) The adoption of Act No. 19.968 establishing the family courts weakens the system by waiving, in certain legal proceedings, the requirement for a party to a case to have legal representation or a defence lawyer. Nevertheless, in cases where one party has a lawyer and the other does not, the judge will appoint a lawyer for the party that does not have one, without considering whether or not that party has the means to pay for legal defence, in other words without considering whether that individual is eligible to receive legal aid (on the grounds of poverty). This means that, in some cases, a lawyer is appointed from the duty roster to provide legal defence free of charge for an individual who has the means to pay but has not appointed a lawyer to avoid costs or obstruct proceedings. This has led to a crisis in some regions and provinces where lawyers can be assigned up to 14 cases in their month-long period of duty. The Colegio de Abogados considers that the State has created a situation that is totally incomprehensible and highly abusive. Although draft legislation has been proposed to require all parties to appoint legal counsel, it is uncertain whether it will be enacted in a satisfactory manner.
15. The Colegio de Abogados refers to the definition of forced or compulsory labour in Convention No. 29, and emphasizes that the different forms of forced labour all have in common the use of coercion, the denial of freedom and the menace of a penalty, which need not be a penal sanction, but might also take the form of a loss of rights or privileges. These elements are present in the situation currently faced by Chilean lawyers, who are not able to exercise freedom, consent or free will when cases are assigned to them, and who are subject to coercion because they provide their services under the threat of possible suspension from the exercise of their profession. Denial of the right to exercise a profession, and consequently the opportunity to earn an adequate living, should only be applied in the event of gross misconduct or an offence with serious social consequences. This penalty also has serious repercussions on professional standing and reputation, as the courts make such measures public. Consequently, the situation of lawyers is consistent with the definition of forced or compulsory labour set out in Convention No. 29 in so far as the lawyers are obliged by law to provide a professional service under the roster system by providing legal defence for individuals free of charge. Nor does this situation correspond to any of the five exceptions listed in Article 2, paragraph 2, of Convention No. 29.
16. The Colegio of Abogados adds that the State of Chile is responsible for the forced labour situation faced by lawyers because, as as ILO reports indicate, the State is always responsible when forced labour is not prevented or goes unpunished, whether forced labour is imposed directly or it consents to such action by individuals under its jurisdiction. The complainant organization also refers to various transitional provisions of Convention No. 29 which the State is violating by imposing forced labour on Chilean lawyers (Articles 4, 11, 12 and 14). It emphasizes that lawyers do not receive any monetary compensation not even the minimum wage for their professional work, nor do they receive any funding to cover the expenses that they necessarily incur during the proceedings. In many cases, lawyers are appointed to provide legal defence in courts located in cities other than those in which they live or work and have to travel at their own expense and in their own time, which they could otherwise spend working on cases that they have voluntarily agreed to take on and for which they are paid.
17. The complainant organization alleges that, in order to fulfil its constitutional obligation to provide legal aid to citizens who cannot afford to pay for a lawyer, the State requires candidate lawyers to work without pay for six months and qualified lawyers to work free of charge for individuals under the duty lawyer roster system imposed by law and implemented by the courts. This latter compulsory labour is imposed on lawyers throughout their professional lives. The complainant organization supplies information, by way of example, on the case of three female lawyers who have been victims of forced labour as a result of the assignment of a large number of cases.
18. The Colegio de Abogados considers that Chile is directly and flagrantly in violation of Convention No. 29 through the imposition of forced labour on lawyers through its legislation and courts. It also considers that the legal nature of the work imposed is not in itself a justification for it to be considered acceptable, as coercion and denial of freedom are involved.
19. Lastly, the Colegio de Abogados emphasizes that the Forced Labour Convention, 1930 (No. 29), is a fundamental ILO Convention and that forced labour is a violation of fundamental human rights under the terms of the United Nations International Covenant on Civil and Political Rights of 1966. Forced labour in itself constitutes a violation of human rights and a restriction of personal freedom, and there is no possible justification for the State allowing it, let alone imposing it. Chile cannot invoke any supposed lack of resources to justify obliging lawyers to work without pay for individuals, or for the State. Moreover, the prohibition of forced labour has the status in international law of a peremptory norm from which no derogation is permitted. Chile is therefore under the obligation to comply with Convention No. 29, just as the International Labour Organization is obliged to support efforts to eradicate this unacceptable practice in Chile. The existence of more serious forms of forced labour does not detract from the importance of or divert attention from the situation of Chilean lawyers. Remedying the serious situation affecting them is the best way of encouraging action to prevent, suppress and punish in an exemplary manner all other forms of forced labour in Chile, whether imposed by the State or by individuals.
20. The complainant organization calls for the Government of Chile to be recommended to implement the following measures:
(a) to abolish the imposition on Chilean lawyers of the obligation to work without pay for individuals, poor or otherwise, and/or for the State;
(b) to repeal or amend the relevant laws and regulations, namely sections 595 and 598 of the Courts Code, section 19 of Act No. 19.968, and any other legal provision that directly or indirectly imposes compulsory work on lawyers;
(c) to ensure that the administrative and judicial authorities refrain in future from appointing lawyers through the duty lawyer roster system or from applying any similar system that involves the imposition of forced labour.
B. The Government s observations
21. In its letter dated 26 October 2007, received by the Office on 12 November 2007, the Government presented its observations on the following points.
22. Referring to the allegations that Chilean lawyers are victims of forced labour, on the grounds that the State of Chile, through its legislation, requires them to provide a professional service under a duty lawyer roster system to deal with certain legal cases, the Government indicates that national legislation gives effect to many international treaties in so far as it fulfils the obligation to ensure effective access to justice. In order to guarantee this right, various arrangements have been put in place, such as the duty lawyer roster system, which is considered by the Government to be a normal civic obligation.
23. With regard to the definition of forced labour, the Government cites the provisions of Article 2 of Convention No. 29, which define forced labour and establish situations which do not constitute forced labour. The Government emphasizes that, in accordance with Article 2, three elements must be present for forced labour to exist: the exaction of work or service; the menace of any penalty; and the fact that the worker has not offered him or herself voluntarily. The Government then cites the provisions governing the work of duty lawyers, namely article 19 of the Constitution and sections 520 et seq. and 591 et seq. of the Organic Code of the Courts. On the basis of these provisions, the Government affirms in relation to the above definition of forced labour that:
(a) The existence of the requirement of work or service by the State is undeniable.
(b) With regard to the menace of any penalty, although section 598 of the Organic Code of the Courts provides that lawyers who do not fulfil their obligation to provide free legal defence for the poor shall be sanctioned with suspension from exercising the profession for up to six months, this is an administrative measure rather than a penalty, as section 20 of the Penal Code explicitly excludes a disciplinary administrative measure from constituting a penalty.
(c) The third requirement, that the worker has offered her or himself voluntarily, is met as soon as a lawyer is qualified, as such professionals are aware from the outset that they may be required to fulfil such an obligation and they cannot claim to be ignorant of the law.
The Government concludes that while it might appear reasonable, notwithstanding the above, to bracket the work performed by duty lawyers within the definition of forced labour, the same conclusion cannot be reached when the situations that do not constitute forced labour are analysed, and particularly work or service that forms part of normal civic obligations.
24. The Government explains that the concept of normal civic obligations envisaged in the Forced Labour Convention, 1930 (No. 29), as an exception to forced labour is also used, for the same purpose, in other international instruments: Article 8 of the International Covenant on Civil and Political Rights, 1966, Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Rome Convention) and Article 6 of the American Convention on Human Rights, 1969. In this regard, the Government refers to a judgement of the European Court of Human Rights (Endnote_4) relating to Article 4 of the Rome Convention, in which the Court found that it is not incompatible with the Convention for a lawyer to be required to provide compulsory or ex officio legal aid in the situations defined in domestic procedural law. The Court dismissed claims that a law student who had voluntarily chosen to enter the legal profession was being subjected to forced labour by being required to perform a certain amount of unpaid work during the period of professional training. The service provided did not impose a burden which was too excessive or disproportionate in relation to the advantages attached to the future exercise of the profession for it to be considered that it had not been accepted voluntarily beforehand. As the ideas underlying the exceptions set out in Article 4 are grounded on general interest, social solidarity and what is in the normal or ordinary course of affairs, the service exacted was neither excessive nor disproportionate. The Government also refers to a decision of the United Nations Human Rights Committee in which reference is made to this judgement.
25. Lastly, the Government refers to the report of the Commission of Inquiry established under article 26 of the ILO Constitution to examine the observance by Myanmar of Convention No. 29, which analyses the scope of the exclusion of normal civic obligations from the definition of forced labour and cites the Committee of Experts, according to which three exceptions specifically provided for in the Convention refer to certain forms of work or service that constitute normal civic obligations: compulsory military service, work or service required in cases of emergency, and minor communal services. The Committee of Experts also refers to other examples of normal civic obligations, such as compulsory jury service and the duty to assist a person in danger or to assist in the enforcement of law and order. The Committee of Experts pointed out that these exceptions must be read in the light of other provisions of the Convention and cannot be invoked to justify recourse to forms of compulsory service which are contrary to such other provisions.
26. The Government concludes that, in the light of ILO Convention No. 29, the international instruments referred to and relevant international case law, the assignment to lawyers of the duty to provide free legal aid to persons who do not have sufficient resources to have access to other professional assistance cannot be considered forced labour. It should instead be understood as a normal civic obligation in a democratic and caring society, and accordingly an exception from forced labour, which is the subject of international condemnation and action.
C. The Committee s conclusions
27. The Committee notes that the Colegio de Abogados considers that Chilean lawyers are victims of forced labour as they are obliged by law to work without pay for individuals, especially under the duty lawyer roster system. In the view of the complainant organization, this practice is consistent with the definition of forced or compulsory labour set out in Article 2, paragraph 1, of Convention No. 29, and does not correspond to any of the five exceptions listed in paragraph 2 of that Article. The Committee also notes that, in the view of the Government, the service provided by duty lawyers does not correspond to the definition of forced labour set out in the Convention in so far as two of the three elements required by the Convention to constitute forced labour are absent, or in other words consent is given and there is no penalty in the event of refusal. The Government further considers that the assignment to lawyers of the duty to provide legal aid to poor people forms part of a normal civic obligation an obligation that is explicitly excluded from the definition of forced labour.
28. The Committee observes that, although the complainant organization s claim is based primarily on the duty lawyer roster system, it also refers to two other systems under which Chilean lawyers are required to provide compulsory and unpaid services for individuals: work by student lawyers for poor people through legal clinics and the six-month work placements in legal aid associations. According to the Colegio de Abogados, a student work-year is a common practice in all professions and is an essential complement to their studies. In this regard, the Committee recalls that the ILO supervisory bodies have repeatedly indicated that work practice required in the context of education or vocational training, which is generally of limited duration, does not constitute compulsory work or service within the meaning of Convention No. 29, but is considered to be a component of education. The Committee considers that this is the case of student work in legal clinics and to the professional practice that forms part of university training programmes for lawyers. The Committee will therefore confine itself to examining the compatibility of the duty lawyer roster system with the provisions of Convention No. 29. Furthermore, the Committee observes that the complainant organization also refers to various transitional provisions of Convention No. 29 (Articles 4, 11, 12 and 14). In this regard, the Committee recalls that the ILO supervisory bodies have considered that since the Convention adopted in 1930 calls for the suppression of forced labour within the shortest possible period, it appears to be no longer possible to invoke these transitional provisions to the detriment of its main purpose. For a State to now be seen to rely on these transitional provisions would appear to disregard their transitional function and contradict the spirit of the Convention . Consequently, the Committee will not take into account the arguments relating to the transitional provisions (Article 1, paragraph 2, and Articles 3 to 24).
29. In these circumstances, the Committee will first examine whether the work required of lawyers through the roster falls within the definition of forced labour set out in Article 2, paragraph 1, of the Convention. As appropriate, it will then examine whether the duty lawyer roster system can be considered a normal civic obligation and therefore be excluded from the scope of the Convention (Article 2, paragraph 2).
30. As indicated by both the complainant organization and the Government, under the definition of forced labour set out in Convention No. 29, three elements have to be present for a situation to be classified as forced labour: the exaction of work or service; the menace of any penalty; and the fact that the worker has not offered her or himself voluntarily. There is no question with regard to the first element as, under section 598 of the Organic Code of the Courts, duty lawyers are obliged to provide legal defence free of charge until proceedings are completed in any cases assigned to them by a court.
31. With regard to the second element relating to the menace of any penalty, the same provision of the above Code formally provides that any lawyer who fails to fulfil this obligation shall be sanctioned with suspension from the exercise of the profession for up to six months . The Government maintains that suspension from practising law is an administrative measure and not a penalty. The Committee does not share this view, as the concept of a penalty envisaged in the Convention covers not only penal sanctions, but any form of sanction and punishment and any form of loss of a right, advantage or privilege. Whatever the terminology used (in this case, the Government refers to an administrative measure ), the content of the sanction that is envisaged corresponds to the concept of a penalty as contained in the definition of forced labour set out in the Convention. Lawyers who are punished are prevented from practising their profession, which has financial consequences that are both direct (loss of income) and indirect (loss of clients) and repercussions on their reputation.
32. On the issue of whether lawyers offer themselves voluntarily to undertake the tasks assigned under the duty lawyer roster system, the Committee considers that even though lawyers choose freely their profession and know of the existence of certain legal obligations, such knowledge is not in itself sufficient to exclude the compulsory nature of the work required from duty lawyers. Indeed, the lawyers have no choice but to accept the general system governing their profession with all its legal requirements, which include the duty lawyer roster system.
33. In conclusion, the Committee is of the opinion that the work imposed on duty lawyers falls within the general definition of forced labour set out in Convention No. 29 in so far as lawyers undertake work or service under the menace of a penalty without having offered themselves voluntarily for such work. It is therefore necessary to consider whether the practice of duty lawyers may constitute an exception to forced labour within the meaning of the Convention.
34. The Committee recalls that under Article 2, paragraph 2, of Convention No. 29, certain forms of compulsory work or service which would have fallen within the general definition of forced or compulsory labour are specifically excluded from its scope. In this regard, the Colegio de Abogados maintains that the situation of duty lawyers does not correspond to any of the five exceptions envisaged in Article 2, paragraph 2. The Government, on the other hand, maintains that the duty assigned to duty lawyers providing free legal aid to people who do not have sufficient resources should be understood as a normal civic obligation to be fulfilled in a democratic and caring society and that this obligation specifically constitutes one of the exceptions envisaged by the Convention.
35. The Committee observes that, of the five exceptions to forced labour envisaged by the Convention, four correspond to the need to ensure work of general interest. (Endnote_5) For each of these exceptions, criteria have been established to determine the limits of the exceptions. In the present case, the obligation imposed on lawyers to provide legal defence for poor people is a result of the State s commitment to guarantee access to justice for all. Nevertheless, it has to be pointed out that this obligation, which is based on service of general interest, only concerns a very small fraction of the population in the form of a particular professional group. The Committee therefore considers that, as it is not imposed on all persons equally, this obligation is not in itself a normal civic obligation. The duty lawyer roster system is an obligation inherent in the profession of a lawyer, based on the need to act in the general interest, the common denominator of the exceptions to forced labour. This obligation accordingly retains similarities with the exceptions envisaged by the Convention. However, the Committee considers that, as is the case with those exceptions, the duty lawyer roster system should be subject to certain reasonable restrictions of proportionality to remain outside the scope of the Convention.
36. The Committee observes that compliance with reasonable limits of proportionality in the duties imposed on duty roster lawyers is indispensible if such work, despite its similarity to the definition of forced labour, is not to constitute forced labour within the meaning of the Convention. The Committee will therefore now examine the manner in which this legal obligation is applied in practice:
(a) The Committee notes firstly that under the relevant legislation (sections 595 and 598 of the Organic Code of the Courts), lawyers may be appointed as duty roster lawyers throughout their careers. They are under an obligation of availability that is not limited in time to provide legal defence in cases assigned by the courts.
(b) The Committee notes from the information provided by the complainant organization, which was not refuted by the Government, that in some regions a lawyer s name may appear on the roster on a fairly regular basis, for example once or twice a year. In view of the obligation to provide legal defence until proceedings are completed and the lengthy nature of legal proceedings, lawyers may find that they are dealing with several cases at the same time. The information also shows that the procedure followed in family courts has contributed to a significant number of duty lawyers being appointed to provide legal defence for parties who appear in court without a legal representative (either by choice or because they do not have sufficient resources).
(c) The Committee observes that, under the law lawyers have the obligation to defend the cases assigned to them free of charge. They do not receive any remuneration for this work and are not compensated for the expenses incurred. The Committee considers that the lack of remuneration and compensation is a significant factor in considering the proportion of work that may be imposed on the basis of an obligation inherent in a profession. While it may be accepted that the State s commitment to guarantee the access of all inhabitants to justice implies the obligation of lawyers to accept the cases assigned, in the view of the Committee such an obligation should not result in a disproportionate financial loss for lawyers (the only people who can perform these duties). It is the responsibility of the State to bear the financial burden of ensuring that all inhabitants have access to justice. Consequently, duty roster lawyers should receive financial compensation which at least covers the costs incurred in defending the cases assigned to them.
(d) Lastly, the Committee is bound to emphasize the disproportionate nature of the disciplinary sanction that can be imposed on on duty roster lawyers who do not fulfil their obligation to defend the cases assigned to them. The sanction provided for under section 598 of the Organic Code of the Courts is suspension from exercising the profession for six months. This sanction prevents lawyers from receiving an income not only during but also after the period of their suspension, as the loyalty of their clients may be affected.
37. In the light of these observations, the Committee considers that the functioning of the duty lawyer roster system, under which lawyers are obliged to provide legal defence free of charge in any cases assigned to them by the courts, is not accompanied by measures to ensure that the obligation is subject to reasonable limits in terms of proportionality. The information supplied shows that, in certain cases, the volume and frequency of the work imposed on lawyers under this obligation have an impact on the normal exercise of their profession.
38. In conclusion, the Committee observes that the duty lawyer roster system, an obligation inherent to the profession of lawyer, does not in itself constitute forced labour where it complies with reasonable limits of proportionality. The Committee nevertheless considers that in its current application it results in the imposition of duties that exceed such limits. The Committee therefore considers that the Government needs to take measures to ensure that this system operates within the reasonable limits of proportionality that are essential to ensure that this inherent obligation of the profession of lawyer does not constitute forced labour, thereby ensuring compliance with Convention No. 29.
III. The Committee s recommendations
39. The Committee recommends that the Governing Body:
(a) approve the report;
(b) in light of the conclusions contained in paragraphs 27 to 38 of the report and in order to ensure that Chilean lawyers enjoy the protection against forced labour afforded by the Convention, request the Government of Chile:
(i) to review the overall functioning of the duty lawyer roster system in order to ensure that the system does not prejudice the free exercise of the profession of lawyer;
(ii) to take the necessary measures to ensure that such a review takes into account the volume of work imposed, the frequency of assignments, the financial losses incurred and the excessive nature of the sanction that is currently envisaged;
(c) invite the Government, in its next reports under article 22 of the ILO Constitution, to provide detailed information on the measures adopted to give effect to the recommendations made above so that the Committee of Experts on the Application of Conventions and Recommendations can continue the examination of the issues raised with regard to the application of the Convention;
(d) declare closed the procedure initiated before the Governing Body as a result of the representation presented by the Colegio de Abogados de Chile, AG. alleging non-observance by Chile of Convention No. 29.
Geneva, 11 November 2008.
(Signed) Mr D. Celaya Alvarez
Chairperson
Mr J. De Regil
Ms H. Anderson Nevárez
Point for decision: Paragraph 39.
Endnote 1
Convention No. 29 was ratified by Chile on 31 May 1933.
Endnote 2
Standing Orders adopted by the Governing Body at its 57th Session (8 April 1932) and modified at its 82nd Session (5 February 1938), 212th Session (7 March 1980) and 291st Session (18 November 2004).
Endnote 3
Document GB.299/7/1 and minutes of the 299th Session, document GB.299/PV, para. 75.
Endnote 4
Ruling of 26 and 27 Oct. 1983, Van der Mussele v. Belgium.
Endnote 5
Compulsory military service, normal civic obligations, work or service exacted in cases of emergency, and minor communal services (Article 2, paragraph 2(a), (b), (d) and (e), of the Convention).