Observación (CEACR) - Adopción: 2002, Publicación: 91ª reunión CIT (2003)

The Committee notes the information in the Government’s report.

1.  Scope of the Convention and entitlement to the identity document

Articles 1(2) and 2(1) of the Convention. The Committee notes from the Government’s report that article 11(1)(3) and paragraph 3 of Act No. 258 of 23 May 1991 regarding employment on seagoing merchant vessels (the Act), which presently provide for the issuance of seafarers’ identity documents to persons who are neither seafarers nor fishermen, are being amended to bring the Act within the scope of the Convention as regards entitlement. The Committee hopes the Government will provide information on progress in this regard. It also requests information concerning the relevant consultations with shipowners’ and seafarers’ organizations.

2.  Persons legally banned from working on vessels

The Committee again recalls the terms of article 13(1)(2)(c) and (d) of the Act according to which the issuance of a seafarers’ identity document can be refused "to persons who have been legally banned from working on vessels" and to "persons for whom there exist reasons to be refused the issuance of a passport".

With regard to the first point, the Committee expresses concern as to the use of provisions of the Penal Code, inter alia, articles 39(2) and 41(1) of the Law of 6 June 1997, to prohibit persons from occupying a specific post or exercising a specific occupation. It notes from the Government’s report that this prohibition may be imposed "if a perpetrator had abused such post or exercised occupation when committing a crime, or if it may be assumed that further occupation of a specified post or exercise of a specified occupation would jeopardize significant interests protected by the law".

The penal sanction referred to by the Government is a text of general application; as such, the Committee considers that given its breadth, concerns regarding the adequacy of procedural safeguards are raised.

A sanction of this nature would need to respect the principle of proportionality as regards both the circumstances of the offence and the duration of the prohibition. In practice and particularly in the maritime sector, such sanctions may result in depriving the worker of employment altogether where skills, training and experience are sector-specific.

Such a ban could only be imposed by a court of law taking into account the nature of the offence and in relation to a specific offence, i.e. in the maritime context this would be justified on grounds where the safety of navigation and the protection of life and limb were directly imperilled.

Moreover, a fundamental distinction exists between crimes committed, and the potential to commit crimes or to repeat offences. Pre-emptive sanctions imposed based on assumptions that other crimes may occur means punishing people by anticipating crimes they might - or might not - commit.

3.  Refusal to issue seafarers’ identity documents

With regard to refusing seafarers’ identity documents to "persons to whom a passport cannot be issued", the Committee recalls its comments in the direct request to the Government in 2000 and again underscores that the seafarers’ identity document is not a passport. Unlike a passport, which is issued pursuant to national legislation and confers no rights in international law, the seafarers’ identity document is issued by a national authority pursuant to and supported by an international Convention which governs the document’s issuance (or refusal), possession and use. (Application of the Seafarers’ Identity Documents Convention, Report of the Committee of Experts on the Application of Conventions and Recommendations, 1999, International Labour Conference, Report III (Part 1A), pages 21-23.)

The Committee notes as stated in the report of the Government a passage on "the premises for refusal [to issue] a passport", in accordance with article 6 of the Law of 29 November 1990 on passports. It notes from the report, inter alia, that: issuance of a passport may also be refused:

-  for a period no longer than 12 months, where a confirmed information was received, under the procedure provided for in international treaties, that a given person had committed profit-seeking - a crime or an offence abroad;

-  also, where the border was crossed on the basis of other documents than a passport, as for example seafarers’ identity documents. The seafarers’ identity document is issued, in accordance with the Convention, by a national authority, which may refuse its issue in cases where a person who applied for it had committed a crime or it may be reasonably suspected that s/he had committed a crime or infringed a statutory obligation.

The Committee further notes that the Government continues to assimilate the seafarers’ identity document to a passport and to impose the same restrictions on the issuance of both documents.

With regard to the refusal to issue seafarers’ identity documents, in its direct request in 2000, the Committee asked the Government to provide "clarification as to the procedures provided for and the international agreements referred to which cause these actions to be taken". No reply was received on these points. The Committee further considers that the denial of seafarers’ identity documents by the State based on "confirmed information" or suspicion, according to unspecified procedures in unspecified international treaties for infractions unrelated to the safety of maritime navigation ("profit-seeking") may defeat the purpose of the Convention which is to facilitate the international professional movements of merchant seafarers.

Finally, as the Government’s report states, the refusal to issue a passport as punishment for having crossed the border "on the basis of other documents than a passport, as for example seafarers’ identity documents" points toward a misunderstanding of the purpose of the document as set forth in the Convention and in the previously cited comments of this Committee in 1999 on the application of the Seafarers’ Identity Documents Convention.

4.  Seafarer’s right of return to the issuing State (Article 5 of the Convention)

The Committee notes from the Government’s report that the identity document is issued to foreign seafarers who are permanent resident aliens in Poland. The report states that a foreign employee on board ship should hold another document (other than the seafarer’s identity document) for crossing the border and for returning to Poland.

As stated in the 1999 comments of this Committee concerning the application of the Convention, the seafarer’s identity document is the sole document needed for the seafarer to enter the territory of another State Party to the Convention and to return to the issuing State. Regarding the seafarer’s return to Poland, foreigners who hold a Polish seafarer’s identity document are entitled to enter Poland on the basis of that document for up to one year following its expiry. This conventional right of return is independent and unrelated to the validity of any other document the seafarer may hold, such as an alien residence permit. The Committee, therefore, requests the Government to indicate the legislative and/or regulatory texts which guarantee readmission to Poland of foreign seafarers to whom a Polish seafarers’ identity document has been issued.

The Committee, therefore, requests the Government:

(i)  to modify the legislative and administrative texts concerning persons legally banned from working on vessels and bring them into line with the above comments and to advise of the measures taken;

(ii)  to identify the aforementioned procedures and international treaties which serve as the legal basis for refusing issuance of seafarers’ identity documents;

(iii)  to ensure that the primacy of international agreements, as set forth in article 1(3) of the aforementioned Act, is respected with regard to this Convention and that the identity document is not subjected to the regulations for obtaining passports, and to advise of the measures taken;

(iv)  to indicate the texts guaranteeing the right of foreign seafarers to return to Poland on an expired Polish seafarer’s identity document; and

(v)  to indicate the status of the amendment process regarding entitlement to the document, and to forward the amending texts when available.

[The Government is asked to reply in detail to the present comments in 2003.]