Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee notes the Government’s first and second reports and requests it to provide information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes with interest that, on 12 June 2003, the Government renewed the Memorandum of Understanding (MOU) with ILO/IPEC until 2007. The Committee also notes with interest that the Government is currently developing a National plan for the elimination of child labour, which will include specific action for the elimination of the worst forms of child labour. It requests the Government to provide information on the National plan for the elimination of child labour, which is currently being prepared.

Article 3. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children. Under section 172 of the Penal Code, any person who encourages, facilitates or assists persons, whether male or female, to enter or leave the country for the purposes of prostitution or to maintain them in sexual or economic slavery shall be penalized.

2. Slavery, debt bondage, serfdom and forced or compulsory labour. The Committee notes that under article 20 of the Constitution, all persons are free in the Republic and that any person who is under the protection of the laws of the Republic may not be enslaved. It also notes that under article 56 of the Constitution, the State shall ensure that all individuals have honest work, duly paid, and shall for this reason prevent the development of conditions which, in any manner, limit the freedom or dignity of the individual or reduce her or his labour to a simple commodity. Furthermore, under section 189 of the Penal Code, the act of reducing a person to slavery or a similar practice, or of maintaining such person in this situation, constitutes an offence. Finally, section 8 of the Labour Code provides that no individual shall be restricted in her or his freedom to work nor shall be prevented from devoting her or himself to an occupation, an industry or a trade, on condition that the provisions of laws and regulations are respected.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes that, under article 12 of the Constitution, the army is prohibited as a permanent institution. The police forces necessary to maintain public order shall be established. Military forces shall be established only by virtue of a Pan-American agreement or for the purposes of national defence. Under article 147 of the Constitution, the Council of Ministers may request the Legislative Assembly to declare a state of national emergency and to authorize the ordering of military recruitment, the formation of the army and the negotiation of peace.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes sections 160 and 169 to 171 of the Penal Code, as amended by the Act of 1999 against the sexual exploitation of minors. It notes in particular that, under section 160 of the Penal Code, any person who pays a young person, whether male or female, promises to pay such person or to provide an economic benefit or a benefit of any other nature in exchange for the performance of sexual or erotic acts shall be penalized. Under sections 169 and 170 of the Penal Code, any person who encourages or induces persons under 18 years of age, male or female, to prostitute themselves, maintains them in this situation or procures them for this purpose is guilty of the crime of aggravated procurement. Section 169 also provides for a sentence of imprisonment for any person who maintains an individual in sexual slavery. Finally, section 171 of the Labour Code provides that any person who, through coercion, maintains, even partially, a person who prostitutes her or himself and exploits her or his income shall be liable to a sentence of imprisonment. According to the so-called rapid assessment study undertaken in 2001 on the commercial sexual exploitation of young persons, although Costa Rica was the first country in Latin America to adopt a law specifically penalizing those exploiting such persons, difficulties of application still exist in practice. The Committee therefore requests the Government to provide information on the effect given in practice to the above provisions, including statistics on the number of persons prosecuted.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes sections 167 and 173 of the Penal Code, as amended by the Act of 1999 against the sexual exploitation of young persons. Under section 167 of the Penal Code, any person who uses young persons for erotic, pornographic or obscene purposes, in exhibitions, public or private performances of such nature, commits an offence. Under section 173 of the Penal Code, any person who manufactures or produces pornography using young persons or their image shall be penalized. The Committee notes that the above provisions of the Penal Code do not define the term "young persons" so as to determine the age of the persons concerned by this provision. In this respect, the Committee reminds the Government that the prohibition set out in Article 3(b) of the Convention, namely of the use, procuring or offering of a child for the production of pornography or for pornographic performances, applies to any person under 18 years of age. The Committee therefore requests the Government to specify the age of the "young persons" to which sections 167 and 173 of the Penal Code apply.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that under section 71(c) of Act No. 7786 of 1998 respecting narcotic and psychotropic substances, prohibited drugs and related activities, the act of using young persons to commit the offence of the production or trafficking of drugs constitutes an aggravating factor in the determination of penalties. The Committee notes that the offences defined by Act No. 7786 relate to the distribution, sale, manufacture, preparation, transformation, cultivation, production and sale of drugs or substances referred to by the Act (section 61). The Committee observes that section 71(c) uses the term "young person" without determining the age of the persons concerned by this provision. The Committee reminds the Government that the prohibition set forth in Article 3(c) of the Convention, namely of the use, procuring or offering of a child for illicit activities, applies to any person under 18 years of age. The Committee therefore requests the Government to specify the age of the "young persons" to whom section 71(c) of Act No. 7786 respecting narcotic and psychotropic substances, prohibited drugs and related activities is applicable.

Article 3(d) and Article 4, paragraphs 1 and 3. Types of hazardous work and revision of the types of hazardous work determined. The Committee notes that section 94 of the Code of Childhood and Adolescence prohibits the employment of young persons (persons between 12 and 18 years of age - section 2) in mines and quarries, unhealthy or dangerous places, bars selling alcoholic beverages, activities jeopardizing their safety or that of other persons placed under their responsibility, and activities which require the operation of dangerous machinery, contact with pollutants or work at excessive noise levels. Section 95 of the Code of Childhood and Adolescence prohibits night work by young persons. The Committee also notes that under section 87 of the Labour Code, it is absolutely prohibited to engage young persons under 18 years of age to carry out types of work which, physically or mentally, are unhealthy, arduous or hazardous, which are to be determined by regulations. Furthermore, section 88 of the Labour Code prohibits the night work of young persons under 18 years of age, as well as work by day in inns, clubs, bars and other outlets for the immediate consummation of alcoholic beverages. The Labour Code (section 89) and the Code of Childhood and Adolescence (section 95) also prohibit work by young persons for long hours.

The Committee notes with interest that the Regulations of 2001 respecting the engagement of young persons in accordance with occupational health conditions (Decree No. 29920-MTSS) establish a detailed list of the types of work and workplaces which are unhealthy and hazardous. Sections 4 and 5 lay down the hazardous types of work which are totally prohibited for young persons: (a) mines, the exploitation of quarries, underground work and excavations; (b) work in which the noise level is equivalent to or higher than 85 decibels; (c) work using machinery, tools or equipment which produce low, medium or high frequency vibrations; (d) the preparation, packaging, handling, transport and application of agrochemicals; (e) activities involving contact with toxic, inflammable, radioactive, infectious, irritating and corrosive products, substances or objects; (f) entertainment activities in prejudicial places, such as night centres, gaming rooms, rooms or sites of obscene performances, or studios producing pornography; (g) the production, preparation and exclusive sale of alcoholic beverages; (h) the operation of specialized equipment, such as cranes, hoists, tractors or other machines prohibited for young persons under 18 years of age; (i) the manual lifting, placing or transport of loads of over 15 kg for young men and 10 kg for young women; (j) activities requiring the use of manual and mechanical machines and tools which may result in amputations, shocks, bruising, fractures, superficial wounds or internal traumatisms; (k) caring for children or persons who are sick or elderly; (l) dock work; (m) work on the high seas; (n) construction activities requiring training or experience; (o) the construction and demarcation of quarries, particularly work involving the movement of earth, the handling of asphalt and the operation of quarry construction vehicles or machines; (p) work at heights of over two metres, particularly in stairways and open spaces; (q) electrical work; (r) ionizing, infrared and ultraviolet radiations; and (s) work in freezing chambers.

The Committee notes the information provided by the Government that the Occupational Health Council prepared a document in 2002 entitled "Hazardous and unhealthy activities for young workers". This document examines the possibility of determining, in addition to the activities set forth in the above Regulations, other types of hazardous work not envisaged in the latter. The Committee notes the document "Hazardous types of work by children and young persons in Costa Rica", published in 2003. It notes the Government’s indication that the objective of the document is to identify the scope of the problem of hazardous work performed by children and young persons. According to the data contained in the document, some 51,706 workers under 18 years of age are distributed in 288 activities, with the majority (38,863 or 75 per cent) in 12 activities. With a view to providing a better overview of the young workers who may be most vulnerable to occupational risks, the document focuses on five activities in which 23,795 (46 per cent) of young workers are engaged. These are: room attendants, workers paid on a monthly basis and canteen attendants, girl child carers, street hawkers, agricultural and construction workers. These activities have not been determined as being hazardous, but their performance is, according to the technical secretariat of the Occupational Health Council, liable to involve risks which may jeopardize the health and safety of young workers. Several of these activities are also those in which a high number of occupational accidents occur. The Committee further notes the document entitled "National report on the results of the survey on work by children and young persons in Costa Rica", published in 2003. It notes the Government’s indication that this report contains information on activities in which a high number of working children and young persons are found. According to the data contained in this document, a large number of children and young persons work in activities which secure a barely adequate or inadequate level of well-being.

According to the information available to the Office, the various initiatives referred to above have led to the preparation of a preliminary draft Bill prohibiting hazardous and unhealthy types of work for young workers. The Committee requests the Government to provide information on the preparatory work and adoption of this Bill prohibiting hazardous and unhealthy types of work for young workers.

Article 4, paragraph 2. Identification of where types of hazardous work exist. The Committee notes that the Government’s indication in its report that the objective of the document entitled "Hazardous work by children and young persons in Costa Rica" is also to identify in geographical terms the places in which boys, girls and young persons carry out types of hazardous work. The Committee also notes that the document entitled "National report on the results of the survey on work by children and young persons in Costa Rica" identifies certain geographical areas in which types of hazardous work are undertaken by children and young persons.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to the Convention. 1. Labour inspection. The Committee notes the information provided by the Government that the institutions responsible for ensuring the application and compliance with workers’ rights, and particularly young workers, are the Ministry of Labour and Social Security (MTSS) through: (i) the National Directorate of the General Labour Inspectorate; and (ii) the Bureau for the Monitoring and Elimination of Child Labour and the Protection of Young Workers. The Committee also notes that the national legislation, which regulates the labour inspection system, contains provisions setting out the responsibilities and rights of labour inspectors. In this respect, it notes that under section 89 of Act No. 1860 of 21 April 1955 respecting the Ministry of Labour and Social Security, and section 52 of the Regulations reorganizing and rationalizing the Ministry of Labour and Social Security (Decree No. 1506-TBS of 16 February 1971), labour inspectors are authorized to inspect workplaces. The Committee further notes that the Code of Childhood and Adolescence, the Regulations of 2001 respecting the engagement of young persons in accordance with occupational health conditions (Decree No. 29920-MTSS) and the Labour Code provide for mechanisms to monitor the implementation of their provisions.

2. Bureau for the Monitoring and Elimination of Child Labour and the Protection of Young Workers. The Committee notes that, under the terms of Directive No. 1 of the Ministry of Labour and Social Security, of 13 March 2001, it is envisaged that in each regional inspection bureau an inspector will be made responsible for the problem of child labour, in collaboration with the committees on childhood and adolescence, the responsible committees for each community and other structures for the elimination of child labour and the protection of the working conditions of young persons within the framework of the policies pursued by the Government. The Committee notes that, under this Directive, the labour inspectorate is responsible for planning activities, in collaboration with the Bureau for the Monitoring and Elimination of Child Labour and the Protection of Young Workers, which is responsible for monitoring and technical assistance. The Committee requests the Government to provide information on the operation of the Bureau for the Monitoring and Elimination of Child Labour and the Protection of Young Workers, for example, by providing extracts of reports or documents.

3. CONACOES. The Committee notes that the National Commission to Combat Commercial Sexual Exploitation (CONACOES) is responsible for the elimination of the commercial sexual exploitation of girls, boys and young persons in Costa Rica. It requests the Government to provide information on the activities of the National Commission to Combat Commercial Sexual Exploitation.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes that the Government, in collaboration with ILO/IPEC, has established several projects. In particular, it notes the project for the prevention and elimination of the worst forms of domestic work by children in Central America and the Dominican Republic and the sub-regional programme for the prevention and elimination of child labour in the coffee industry. The Committee requests the Government to provide information on the implementation and results of the above programmes with regard to the elimination of the worst forms of child labour.

Article 7, paragraph 1. Penalties. The Committee notes that the national legislation provides for sufficiently effective and dissuasive penalties for violations involving the worst forms of child labour. Under section 189 of the Penal Code, any person found guilty of reducing an individual to slavery or a similar practice, or of maintaining them in this situation, is liable to a sentence of between four and 12 years’ imprisonment. Under section 172 of the Penal Code, any person committing the crime of the trafficking of young persons is liable to a sentence of between four and ten years’ imprisonment. In accordance with section 160 of the Penal Code, the crime of paid sexual relations with young persons gives rise to a sentence of imprisonment of between two and ten years. Section 171 of the Penal Code provides for a sentence of imprisonment of between three and ten years for any person found guilty of the crime of procuring. Furthermore, section 173 of the Penal Code provides for a sentence of imprisonment of between three and eight years for any person in violation of this provision. Under section 167, the crime of pornography is punishable by a sentence of imprisonment of between three and eight years. Section 168 of the Penal Code provides that any person who commits the crime of so-called aggravated pornography is liable to a penalty of between four and ten years’ imprisonment. Under sections 169 and 170 of the Penal Code, a sentence of imprisonment of between two and five years is envisaged for any person found guilty of aggravated procurement or the maintenance of an individual in sexual slavery. By virtue of section 77 of Act No. 7786 of 1998 respecting narcotic and psychotropic substances, prohibited drugs and related activities, a sentence of imprisonment of between eight and 20 years is envisaged for the offence of the production or trafficking of drugs in cases in which the offence is committed in certain circumstances, including the use of young persons. Section 101 of the Code of Childhood and Adolescence provides for penalties for violations by the employer of certain provisions of the Code, including section 94 (prohibition of hazardous type of work) and section 95 (prohibition of night work). The fines envisaged range between one and 23 wages (section 613 of the Labour Code). Section 101 of the Code of Childhood and Adolescence also provides for penalties for violations by individuals, namely a fine of between one and 23 wages. The Committee requests the Government to provide information on the application of these penalties in practice.

Article 7, paragraph 2. Effective and time-bound measures. The Committee notes with interest that Costa Rica is participating in the ILO/IPEC Time-Bound Programme (TBP) on the worst forms of child labour for a two-year period. According to the working paper entitled "Combating the worst forms of child labour in Costa Rica (2003-2005)", the TBP will be of direct benefit to around 1,120 young workers under 18 years of age, of indirect benefit to 3,620 young persons under 18 years of age who are at risk and to around 800 families. It also notes that the TBP will focus its activities in the Brunca region and will address two of the worst forms of child labour in respect of which the Government has to take priority measures. These are the commercial sexual exploitation of young persons and types of hazardous work.

Clauses (a) and (d). Preventing the engagement of children in the worst forms of child labour and children at special risk. The Committee notes that, according to the above document, of the 3,620 children targeted by the TBP, some 3,500 are considered to be at risk in types of hazardous work and 120 in commercial sexual exploitation. The Committee requests the Government to provide information on the measures adopted in the context of the TBP for the protection of these young persons. It also requests the Government to provide statistical data on the number of children who are prevented in practice from being engaged in the worst forms of child labour as a result of the implementation of the TBP.

The Committee also notes that article 78 of the Constitution and section 59 of the Code of Childhood and Adolescence provide that pre-school education, general basic education and specialized education are free and compulsory. In its report, the Government states that sections 78 and 92 of the Code of Childhood and Adolescence do not allow the employment of young persons under 15 years of age. These provisions guarantee compulsory education at least up to 15 years and constitute a powerful measure, if implemented, to prevent the engagement of children in the worst forms of labour. The Government is requested to provide information on improving enrolment in schools.

Clause (b). Assistance for the removal of children from the worst forms of child labour. The Committee notes with interest that, according to the above document, the number of girls, boys and young persons concerned by the TBP is 1,000 out of a total of 11,851 in the case of types of hazardous work and 120 in relation to commercial sexual exploitation. However, the total number of children in this latter activity is still not known. The Committee also notes that the TBP provides for economic alternatives for the families of children who are removed from the worst forms of child labour. Children removed from these activities benefit from rehabilitation and social integration measures. The Committee requests the Government to provide information on the economic alternatives and the measures taken to ensure the rehabilitation and social integration of the children concerned. It also requests the Government to provide statistical data on the number of children who are in practice removed from work.

Clause (c). Access to free basic education. With regard to the TBP, the Committee notes that education measures are envisaged for children who are removed from the worst forms of child labour concerned. Children under 14 years of age will be placed in primary schools, will receive psychological and educational support and tutorial and educational assistance to help them succeed in their studies. Those between 15 and 17 years of age will receive vocational training, after completing transitional education, and assistance to find work. The Committee requests the Government to provide information on the number of young persons who, after being removed from work, are in practice reintegrated into basic education courses or receive pre-vocational or vocational training.

Clause (e). Special situation of girls. The Committee requests the Government to indicate the manner in which it intends, within the context of the TBP, to take account of the special situation of girls and remove them from the worst forms of child labour.

Article 8. Enhanced international cooperation and/or assistance. Costa Rica is a member of Interpol, an organization which assists in cooperation between countries in the various regions, particularly to combat the trafficking of children. In its report, the Government states that, in the context of policies for the negotiation of free trade treaties, the labour cooperation agreements that are in force and those under discussion, envisaging the defence of the fundamental principles and rights set out in the ILO Declaration of 1998, it is aware of the need to take appropriate measures for mutual assistance in giving effect to the provisions of the Convention through enhanced international cooperation and/or assistance. While noting the above information, the Committee encourages the Government to enter into cooperation with other countries and requests it to provide detailed information on enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes that, taking into account the figures provided in the document "Combating the worst forms of child labour in Costa Rica (2003-05)", a fairly high number of children engaged in the worst forms of child labour, as well as certain tourist regions, are not covered by the TBP. It requests the Government to indicate whether it intends taking measures to establish programmes for the removal of these children from their work and to extend the TBP to other regions. The Committee also requests the Government to continue providing statistics and information on the nature, extent and trends of the worst forms of child labour. The Committee therefore requests the Government to provide statistics and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements, investigations, prosecutions, convictions and penal sanctions applied. To the extent possible, the information provided should be disaggregated by sex.