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

Article 1(1) and Article 2(1) of the Convention. 1. With regard to the conditions for the resignation of public servants and other state employees, the Committee has since 1985 been drawing the Government's attention to Legislative Decree No. 46 of 23 July 1974, under which a term of imprisonment may be imposed for leaving or interrupting work as a member of the staff of any public administration, establishment or body or any authority of the public or mixed sector before resignation has been formally accepted by the competent authority; or evading obligations to serve the same authorities, whether the obligation derived from a mission, a scholarship or a study leave. Further, the personal goods and property of the person concerned may be confiscated. The Committee previously observed that persons in the service of the State should have the right to leave the service on their own initiative within a reasonable period, either at specified intervals or with previous notice. Persons who have benefited from missions, scholarships or study leave, should also have the right to leave the service on their initiative within a reasonable period proportional to the length of the studies financed by the State or through the reimbursement of the assistance they may have received. The Committee requests that the Government take the necessary measures to ensure that both law and practice are in conformity with the Convention and that persons in the service of the State are free to leave their employment within a reasonable period. It again asks the Government to provide full information on the matter in its next report.

2. The Committee has also since 1987 drawn the Government's attention to Legislative Decree No. 53 of 1962, pursuant to which the resignation of a member of the armed forces who has received a scholarship can only be accepted after ten years of service if the scholarship has lasted longer than one year. The Committee noted a statement by the Government that resignation can be accepted in case of reimbursement only if the person concerned refunds an amount double that of the expenses incurred by the State. The Committee notes from the Government's report that a letter was sent to the Ministry of Defence in 1998, asking for its views. It notes the content of the answer, which provides no new information on the matter. The Committee refers again to paragraphs 33 and 72 of its 1979 General Survey on the abolition of forced labour: career military servicemen who have voluntarily entered into an engagement, should have the right to leave the service in peacetime within a reasonable period, either at specified intervals or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service; those who have benefited from a scholarship should also have the right to leave the service within a reasonable period that is proportional to the length of the studies financed by the State, or through reimbursement of the actual costs incurred by the State. The Committee hopes that the Government will take the necessary measures to amend its legislation so as to ensure full conformity with the Convention on this point, in law and in practice.

3. In its previous comments, since 1987, the Committee noted that section 597 of the Penal Code provides for sentences of imprisonment involving the obligation to work in cases of vagrancy. In this regard, the Government indicates in its report that the Ministry of Justice answered a letter addressed to them in 1998 by the Ministry of Social Affairs and Labour, stating that a draft Legislative Decree to amend the Penal Code was still under study by the Council of Ministers. The Committee also noted that a copy of the draft has been sent.

The Committee notes that in its report received in June 1998 the Government repeats information already given in previous reports. The Committee recalls that it has considered that provisions on vagrancy are liable to become a means of compulsion to work. It hopes that the Government will take the necessary measures to bring its legislation and practice into conformity with the Convention. It asks the Government to provide information in its next report on any developments in the matter, and that a copy of the Legislative Decree mentioned above be sent as soon as it has been adopted. While noting again the explanations with respect to the archives system of the judicial authorities, the Committee once more requests the Government to provide, with its next report, a sample of recent judgements applying sanctions in application of section 597 of the Penal Code.

Article 2(2)(d) of the Convention. 4. The Committee has been making comments since 1964 on provisions of Decree No. 133 of 1952, respecting compulsory labour, particularly Chapter I (compulsory labour for purposes of health, culture or construction) and sections 27 and 28 (national defence work, social services, road work, etc.) which prescribe forms of compulsory service that go beyond the exceptions authorized by the Convention, such as "any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity ... and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population". The Committee notes the indication in the Government's report received in September 1998 that a Legislative Decree to replace Decree No. 133 of 1952 has been submitted to the competent authority and is still under study. According to the report, the Ministry of Social Affairs and Labour took measures to speed up the promulgation of the Decree, and addressed several letters to the Ministry of the Interior in 1998. The Committee notes the statement that the result of these measures will be communicated as soon as a reply is received from the Ministry of the Interior. The Committee also notes the statement that the provisions of the Decree are not put into practice. With regard to sections 27 and 28 of the Decree concerning national defence work, the Committee notes the indication that letters have been sent to the Ministry of Defence, to ask for information about the draft Civil Defence Decree and to request the follow up of the promulgation with the competent authorities. The Committee also notes that information will be communicated on the reply of the Ministry. The Committee encourages the Government to take the necessary measures to amend Legislative Decree No. 133 of 1952 so as to limit the possibilities of exacting labour to situations of war or emergency or the combating of natural disasters, to repeal sections 27 and 28 and to lay down the necessary sanctions for the illegal exaction of forced or compulsory labour in accordance with Article 25 of the Convention. The Committee trusts that the Government will take the necessary measures to bring the legislation into conformity with the Convention. It asks the Government to communicate full and detailed information on the matter in its next report.

5. The Committee notes with interest the information in the Government's report, that the Government has established at a Technical Legal Committee presided over by the Minister of Social Affairs and Labour, to study any law in force which is incompatible with the provisions of international labour Conventions. The Committee also notes the Government has established a Committee for Consultation and Tripartite Dialogue, to be presided over by the Deputy Minister and that, amongst other functions, this Committee is to review matters related to the reports which are submitted to the ILO on the application of Conventions and Recommendations, have been set up. The Committee would welcome information about the work and results of the deliberations of these committees and in particular aspects which affect this Convention.