Observación (CEACR) - Adopción: 1998, Publicación: 87ª reunión CIT (1999)

The Committee notes the Government's report and the decision of the Federal Constitutional Court of 1 July 1998.

In its last observation, the Committee observed that section 41(3) of the 1976 Act on the execution of sentences, which requires the formal consent of the person concerned to working in privately-run workshops, had not been brought into force; that no measures had been taken to implement the provision in section 198(3) of the 1976 Act for the inclusion of prisoners in the health and pension insurance schemes; and that their wages had remained fixed for the last 20 years at 5 per cent of the national average.

The Committee notes that the Government's report refers to a decision of the Federal Constitutional Court of 1 July 1998. According to the Government, this decision considered section 41 of the above-mentioned Act and said that it only applied in so far as the performance of the work comes under the public responsibility of the prison officers. The Government also said the decision confirmed its own view that the employment of prisoners in private enterprises managed by penal institutions does not constitute forced labour. The Government states that the legislator supported its view and expressly declined to bring section 41(3) into force; and that the court's decision declared that, although section 200(1) of the Act, which fixed the level of remuneration of prisoners under section 43, was incompatible with certain principles of rehabilitation, it would nevertheless continue to be applied. The court instructed the legislature to draft a new regulation. The Federal Government indicates its intention of considering together with Länder governments the conclusions to be drawn from the court's decision and says it will report accordingly to the ILO.

While noting this information, the Committee draws the attention of the Government to paragraph 118 of its General Report in 1998 in which it stressed that the provisions of Article 2(2)(c) of the Convention are not conditional on any particular kind of legal relationship. Thus, they are not limited to cases where a legal relationship would come into existence between the prisoner and the private undertaking, but equally covers situations where no such legal relationship exists and the prisoner has a direct relationship only with the prison. The Committee considers that voluntary consent by the prisoner to working for a private employer is one of the two necessary conditions for compliance with the Convention's prohibition on hiring prisoners to, or placing them at the disposal of, the employers. As the Committee has pointed out previously, only when work is performed voluntarily in conditions which guarantee normal wages, social security, etc., can work by prisoners for private companies be held compatible with the explicit provisions of Article 1(1) and Article 2(1) and (2)(c).

The Committee takes due note of the Government's statement and hopes that the Government in its consideration of the effect of the Court decision will take into account the requirements of the Convention and the Committee's observations as well as comments in paragraphs 97 to 101 of its General Survey of 1979, and that it will set out its reflections in its next report.