Observación (CEACR) - Adopción: 2007, Publicación: 97ª reunión CIT (2008)

Articles 1(1) and 2(1) of the Convention. 1. Freedom of persons in the service of the State to leave their employment. For many years, the Committee has been referring to Legislative Decree No. 46 of 23 July 1974, amending section 364 of the Penal Code, under which a term of imprisonment from three to five years 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.

The Committee has noted the Government’s repeated indications in its reports that, in practice, a worker’s right to submit a request for resignation at any time is fully respected, and the competent authority is bound to accept the resignation, provided the continuity of the service is ensured. In its reports received in 2006 and 2007, the Government confirms its previous indications that the amendment of the Penal Code is currently ongoing and that the Committee’s comments are being taken into account in order to ensure conformity with the Convention. Recalling, with reference to paragraphs 96–97 of its General Survey of 2007 on the eradication of forced labour, 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, the Committee reiterates the firm hope that the necessary measures will soon be taken in order to bring the legislation into conformity with the Convention and the indicated practice, and that the Government will provide information on the action taken to this end.

2. Legislation on vagrancy. Over a number of years, the Committee has been referring to section 597 of the Penal Code, which provides for the punishment of any person who is reduced to seeking public assistance or charity as a result of idleness, drunkenness or gambling. The Committee recalled that, while the punishment of gambling or the abuse of intoxicating liquor is outside the scope of the Convention, the possibility to impose penalties for mere refusal to work is contrary to the Convention.

The Committee previously noted the Government’s indication in its report that the amendments of the Penal Code will accommodate the Committee’s request. The Committee therefore expresses the firm hope that the necessary measures will soon be taken with a view to clearly excluding from the legislation any possibility of compulsion to work, either by repealing section 597 or by limiting its scope to persons engaging in illegal activities, so as to bring legislation and practice into conformity with the Convention.

Article 2(2)(d). Work or services exacted in cases of emergency. In comments it has been making since 1964, the Committee has been referring to certain provisions of Decree No. 133 of 1952 with respect to compulsory labour, particularly those of 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 provide for the call up of inhabitants for periods of up to two months, in circumstances that go beyond the exception authorized by the Convention for “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 has noted the Government’s repeated indications in its reports that Decree No. 133 of 1952 is currently being reviewed with a view to bringing it into conformity with the Convention. The Government reiterates that the provisions of Decree No. 133 are only applied in emergencies and to very limited categories. It also refers in this connection to Legislative Decree No. 15 of 11 May 1971 concerning local administration, under which certain kinds of work or services (national defence work, social services, road work) may be exacted in the event of war, emergencies or natural disasters. The Government repeatedly indicates that Legislative Decree No. 15 does not contain provisions similar to those in the above sections 27 and 28 of Decree No. 133.

While noting this information, the Committee trusts that the necessary measures will soon be taken to formally repeal or amend the above provisions of Legislative Decree No. 133 of 1952 so as to limit the possibility of exacting labour to situations of emergency in the strict sense of the term, as defined in the Convention, and that the Government will soon be in a position to report on the measures taken to this end. The Committee again requests the Government to communicate a copy of Legislative Decree No. 15 of 11 May 1971 referred to above.