Solicitud directa (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

The Committee notes the Government’s first and second reports. It notes that, in addition to the Criminal Code of Bosnia and Herzegovina (Official Gazette of BiH No. 37/03, hereinafter the State Criminal Code), all the three entities of the country have separate Criminal Codes, namely; the Federation of Bosnia and Herzegovina (Official Gazette of the FBiH No. 35/03), the Republika Srpska (Official Gazette of the RS No. 49/03) and the District of Brcko (Official Gazette of the BD No. 10/03). The Committee notes that the State Criminal Code of Bosnia and Herzegovina contains provisions prohibiting a wide range of offences including slavery and the transport of slaves, sale and trafficking of children under 18 for labour and sexual exploitation, and the procuring of children for prostitution. The Committee requests the Government to provide information on the application of the State Criminal Code and to indicate whether it also applies to the three entities.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. I. Federation of Bosnia and Herzegovina. The Committee notes that the Criminal Code of the Federation of Bosnia and Herzegovina does not contain any provisions prohibiting the trafficking of children for labour and sexual exploitation. The Committee therefore requests the Government to provide information on the measures taken or envisaged to prohibit the sale and trafficking of children under 18 years of age for the purpose of labour and sexual exploitation in the Federation of Bosnia and Herzegovina.

II. Republika Srpska. The Committee notes that section 188(4) of the Criminal Code of Republika Srpska penalizes any person who enables the trafficking of a person under 21 years of age to another for the purpose of offering sexual services. The Committee observes that the above section covers only the trafficking of young persons for the purposes of sexual exploitation. The Committee therefore requests the Government to indicate the measures taken or envisaged to prohibit the sale and trafficking of children under 18 years for labour exploitation.

III. District of Brcko. The Committee requests the Government to indicate which of the provisions of the Criminal Code of the District of Brcko prohibits the sale and trafficking of children under 18 years for labour and sexual exploitation.

2. Slavery, bondage, serfdom and forced or compulsory labour. I. Federation of Bosnia and Herzegovina. The Committee notes that section 179 of the Criminal Code of the Federation of Bosnia and Herzegovina prohibits unlawful deprivation of liberty and section 180 penalizes any person who restricts the freedom of movement of a child or a juvenile in order to force him to do or not to do or to bear something. A “child” according to section 2 refers to a person who has not reached 14 years of age, and a “juvenile” is a person who has not reached 18 years of age.

II. Republika Srpska. The Committee notes that article 39 of the Constitution of the Republika Srpska prohibits forced labour and article 40 provides for special protection at work for young people. It also notes that section 145 of the Criminal Code prohibits unlawful deprivation of liberty.

III. District of Brcko. The Committee requests the Government to provide information on the provisions prohibiting slavery and the forced labour of children under 18 years of age in the District of Brcko.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes that at the time of ratification of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the Government declared that, according to the provision of the Law on Defence of the Federation of Bosnia and Herzegovina and the Law on the Army of Republika Srpska, persons under the age of 18 years shall not be recruited into its national armed forces. The Committee requests the Government to provide the text of the relevant provisions of the Law on Defence of the Federation of Bosnia and Herzegovina and the Law on the Army of Republika Srpska, as well as any other legislation prohibiting the recruitment of children below 18 years for use in armed conflict. It also requests the Government to provide information on the legal provisions prohibiting the recruitment of children below 18 years into the armed forces in the District of Brcko.

Clause (b). 1. Use, procuring or offering of a child for prostitution. I. Federation of Bosnia and Herzegovina. The Committee notes that according to section 210(4) of the Criminal Code of the Federation of Bosnia and Herzegovina, whoever, for gain, induces, incites, lures or coerces a child or a juvenile in offering sexual services shall be punished. The Committee requests the Government to indicate the measures taken or envisaged to prohibit the use of persons under 18 years of age for prostitution.

II. Republika Srpska. The Committee notes that according to section 188 of the Criminal Code of the Republika Srpska, whoever, for profit, induces, incites or lures or compels another person under 21 years of age offer sexual services shall be punished with imprisonment. The Committee asks the Government to indicate whether the use of persons under the age of 18 years for prostitution is prohibited under the Criminal Code of Republika Srpska.

III. District of Brcko. The Committee requests the Government to indicate the legal provisions in the District of Brcko, which prohibit the use, procuring or offering of children under 18 years for prostitution. It also requests the Government to supply a copy of the same.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. I. Federation of Bosnia and Herzegovina. The Committee notes that section 211 of the Criminal Code of the Federation of Bosnia and Herzegovina punishes anyone who uses a child or juvenile for pornographic production or induces such person to play in pornographic shows.

II. Republika Srpska. The Committee notes that, according to section 189 of the Criminal Code of Republika Srpska, whoever abuses a child or a juvenile for the purpose of making pictures, audio-visual material or other pornographic material, or abuses such person for pornographic shows shall be punished.

III. District of Brcko. The Committee requests the Government to provide information on the legal provisions which prohibit the use, procuring or offering of a child under the age of 18 years for the production of pornography or for pornographic performances, and to supply a copy of the same.

Clause (c). Use, procuring or offering of a child for illicit activities. I. Federation of Bosnia and Herzegovina. The Committee notes that section 238 of the Criminal Code of the Federation of Bosnia and Herzegovina prohibits the unauthorized production and sale of narcotics. However, this provision does not seem to specifically prohibit the use, procuring or offering of a child for the production and trafficking of drugs. The Committee requests the Government to identify and provide the text of any legislation applicable in the Federation which prohibits the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs.

II. Republika Srpska and the District of Brcko. The Committee requests the Government to identify and provide the text of the legal provisions of the Republika Srpska and the District of Brcko, which prohibit the use, procuring or offering of a child for illicit activities, in particular for the trafficking of drugs as defined in the relevant international treaties.

Article 3, clause (d), and Article 4, paragraph 1. Hazardous work. I. Federation of Bosnia and Herzegovina. The Committee notes that under section 15 of the Labour Law of the Federation of Bosnia and Herzegovina, the employment of persons between the age of 15 and 18 “minors” shall be conditional upon such persons providing a certificate from a recognized medical practitioner or institution attesting that they are sufficiently healthy to perform the job. Section 51 of the Labour Law further states that minors may not work on particularly hard manual works, work underground or underwater, nor on other jobs which could have a harmful effect or increased risk to their life or health, development or morals given their psycho-physical qualities. It also notes that section 32 of the Labour Law prohibit minors from performing overtime work and section 36 restricts night work of minor employees. The Committee further notes that pursuant to section 51(2) of the Labour Law, the Federal Ministry shall issue a separate regulation to determine hazardous types of work prohibited to minors. The Committee requests the Government to indicate whether the Federal Ministry has issued a regulation determining hazardous types of work prohibited for persons under the age of 18 and, if so, to provide a copy thereof.

II. Republika Srpska. The Committee notes that section 14 of the Labour Law of the Republika Srpska stipulates that a person under 18 years of age may not conclude an employment contract for work on jobs entailing increased danger of injuries or increased harm to health. Section 69 of the Labour Law further provides that, “a worker under 18 years of age may not be assigned to work on particularly hard manual works, works underground or underwater, nor in other jobs which might have a harmful effect or increased risk to his or her life or health or psycho-physical development”. Sections 42 and 46 of the Labour Law prohibit persons under the age of 18 years from performing overtime and night work. The Committee notes that pursuant to section 69(2) of the Labour Law, hazardous types of work prohibited for persons under the age of 18 shall be specified by a collective agreement. The Committee requests the Government to indicate whether a list of hazardous activities and occupations prohibited to persons below 18 years of age has been determined by a collective agreement, and if so, to supply a copy of it.

III. District of Brcko. The Committee notes that section 41(1) of the Labour Law of the District of Brcko provides that persons aged between 15 and 18 years may not perform dangerous work such as heavy physical work, work underground or under water, or any other work that is detrimental to their life, health, physical development or morals. Section 28 of the Labour Law prohibits night work for persons aged between 15 to 18 years. The Committee further notes that according to section 41(2), the types of work prohibited to persons between 15 and 18 years of age are determined by collective agreement. The Committee requests the Government to provide information on the types of hazardous work prohibited to persons between 15 and 18 years of age that have been determined by collective agreement, and to supply a copy of it.

Article 5. Monitoring mechanisms. 1. Labour inspection. I. Federation of Bosnia and Herzegovina. The Committee notes that, under section 131 of the Labour Law of the Federation of Bosnia and Herzegovina, the Federal Labour Inspector shall perform supervision over the implementation of this law and the regulations passed on the basis of this law. The Committee asks the Government to provide information on the functioning and activities of the Federal Labour Inspectorate.

II. Republika Srpska. The Committee notes that, as per section 149 of the Labour Law of the Republika Srpska, the labour inspection shall supervise the implementation of the provisions of this law and regulations passed in accordance with this law. According to the Law on Inspection of Labour, the activities of labour inspection are carried out by municipal labour inspectors and the labour inspectors of the Republic. According to section 9 of the Law on Inspection of Labour, the activities of labour inspection are carried out by a municipal labour inspectorate, while the labour inspectorate at the level of the Republic supervises the implementation of regulations in the field of employment and protection at work, especially in enterprises where there is a high risk of mass injuries to employees. The Committee requests the Government to provide information on the findings of the municipal labour inspectors and the labour inspectors of the Republic regarding the extent and nature of violations detected concerning children working in the worst forms of child labour.

Article 6. Programmes of action to eliminate the worst forms of child labour. 1. Action Plan for Children 2002–10. The Committee notes that an Action Plan for Children was initiated in 2002, with the aim of improving and strengthening the status of children in the country. The Council for Children of Bosnia and Herzegovina established by the Ministry of Human Rights and Refugees has the following responsibilities: monitoring the implementation of the Action Plan, reporting annually to the Council of Ministers; coordinating with the relevant ministries in the entities and non-governmental organizations; proposing measures to upgrade the implementation of the Action Plan; and preparing operational plans for each year (Initial Report on Violence against Children, page 27). The Committee requests the Government to provide information on the impact of this Action Plan on the elimination of the worst forms of child labour.

2. Action Plan for the Prevention of Human Trafficking, 2002. The Committee notes that in 2002, the Council of Ministers adopted the Action Plan for the Prevention of Trafficking in Human Beings initiated by the Ministry of Human Rights and Refugees. This Action Plan aims to punish perpetrators of trafficking in human beings, prevent and protect the victims of trafficking and improve regional and international cooperation to combat trafficking. Within the framework of this Action Plan, members of the State Border Service were trained to combat, in particular, trafficking in women and children. An institutional mechanism was developed for training judges, prosecutors and other state officials with regard to the implementation of best practices for the prevention of trafficking in human beings and for the protection of victims of trafficking (Initial Report on Violence against Children, page 18). The Committee further notes that this Action Plan was revised in 2004 with new objectives for combating trafficking in human beings for the next three years, including improving the legal framework and institutional mechanisms regarding trafficking in human beings. The Committee requests the Government to provide information on the measures taken to effectively implement this Action Plan and on its impact on preventing and combating the trafficking of children under the age of 18 years.

Article 7, paragraph 1. Penalties. I. Federation of Bosnia and Herzegovina. The Committee notes that sections 179, 180, 210(4) and 211 of the Criminal Code of the Federation of Bosnia and Herzegovina establish sufficiently effective and dissuasive penalties of imprisonment for the offences related to: unlawful deprivation of freedom; restriction of freedom of movement of a child or juvenile; inducing or coercing a child or juvenile in offering sexual services; and abuse of a child or juvenile for pornography. It also notes that section 140 of the Labour Law of the Federation of Bosnia and Herzegovina provides for penalties of fines ranging from 1,000 marka (BAM) to BAM10,000 for the violations of sections 32, 36 and 51 relating to overtime and night work of minors and the employment of minors in hazardous work. The Committee requests the Government to provide information on the application of these penalties in practice.

II. Republika Srpska. The Committee notes that sections 143, 145, 188(4) and 189 of the Criminal Code of Republika Srpska provide for penalties for the offences related to: coercion; unlawful deprivation of liberty; compelling or inducing persons under the age of 21 years into offering sexual services; and abusing children and juveniles for pornographic purposes. It also notes that section 150 of the Labour Law of the Republika Srpska provides for penalties for the violation of the provisions prohibiting overtime work by minors and for employing persons under the age of 18 years in hazardous jobs prohibited to them according to section 69 of the Labour Law. The Committee requests the Government to provide information on the application of these penalties in practice.

III. District of Brcko. The Committee requests the Government to provide information on legislative provisions that provide for penalties for the violation of the worst forms of child labour as laid down in Articles 3(a)–(d) of the Convention and on their application in practice.

Article 7, paragraph 2. Effective and time-bound measures. The Committee notes the absence of information in the Government’s reports on the existence of time-bound and effective measures: (b) to provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration; (c) to ensure access to free basic education; and (e) to take account of the special situation of girls. The Committee accordingly requests the Government to supply information on the time-bound measures taken or envisaged, both in the federation as well as the two entities as required under Article 7(2)(b), (c) and (e) of the Convention.

Clause (a). Prevent the engagement of children in the worst forms of child labour. Education. The Committee notes that, according to the Government’s Initial Report to the Committee on the Rights of the Child (CRC/C/11/Add.28 of 14 October 2004, paragraphs 38 and 256–267) all children are obliged to attend elementary school for eight years. Elementary education is compulsory, free and available under the same conditions to all children. Secondary education forms part of the overall educational system and is available under the same conditions to all pupils who have completed elementary school. The Committee notes that the Committee on the Rights of the Child (CRC/C/15/Add.260, concluding observations of 21 September 2005, paragraphs 56 and 57) expressed concern at the high number of children who are not enrolled or who drop out of school, lack of access to pre-school education for children in rural areas, discrimination regarding access to education by ethnic and/or national minorities, especially Roma children (only 33 per cent of whom attend primary school), and the fact that other marginalized groups of children, including refugees and returnees face difficulties of access to schooling. The Committee asks the Government to indicate the measures taken or envisaged to increase school enrolment rates and reduce school drop-out rates so as to prevent the engagement of children in the worst forms of child labour. It requests the Government to provide updated statistical information on the primary school attendance and drop-out rates. The Committee also requests the Government to provide information on the measures taken or envisaged to ensure access to education for all children, including Roma children, national minorities and children living in rural areas.

Clause (d). Identifying and reaching out to children at special risk. Roma children. The Committee notes that the exploitation of children, in particular Roma children who engage in begging and forced labour is widespread throughout Bosnia and Herzegovina (Initial Report on Violence against Children, page 50). It also notes that the Committee on the Rights of the Child (CRC/C/15/Add.260, concluding observations, 2005, paragraph 65) expressed concern at the significant number of children, especially Roma living or working on the streets, and very often performing harmful and exploitative work. The Committee notes the Government’s statement that a strategy for addressing the Roma problems in BiH has been passed and an action plan envisaging measures to increase employment opportunities of the Roma population has been developed. It further notes the Government’s statement that the Ministry of Human Rights and Refugees of BiH has submitted action plans for employment, health care and housing management for the Roma to the entity governments for review prior to their adoption by the Council of Ministers of BiH. The Government further states that the implementation of the above action plans would increase the financial security of the Roma population, which would also entail eradication of child abuse, such as begging. The Committee requests the Government to pursue its efforts to specifically address the situation of Roma children. It also requests the Government to provide information on any relevant impact made by the abovementioned measures on protecting Roma children from being engaged in the worst forms of child labour.

Article 8. International cooperation and assistance. The Committee notes that Bosnia and Herzegovina ratified the Convention on the Rights of the Child in 1993, and ratified in 2002 the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. The Committee also notes that the Government is seeking assistance and cooperation from ILO/IPEC in order to prevent the worst forms of child labour in the country. The Committee asks the Government to provide information on any steps taken to assist other member States or on assistance received in giving effect to provisions of the Convention through enhanced international cooperation and assistance including support for social and economic development, poverty eradication programmes and universal education, in conformity with the requirements of the Convention.

Parts IV and V of the report. Application of the Convention in practice. The Committee notes the information provided by the Government on the practical difficulties in Bosnia and Herzegovina related to the implementation of this Convention. It notes that the country, being a transition area between the East and West where most of the trafficking routes are located, the low economic and social situation of the country as well as its neighbouring countries, and the high poverty rate has led to the abuse of children, especially Roma children, in the form of prostitution, narcotics-related offences, begging and forced labour. The Committee requests the Government to provide information on the application of the Convention in practice, including extracts from inspection reports, studies and inquiries and statistical data 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 reported, investigations, prosecutions, convictions and penalties applied.