Solicitud directa (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the Government’s report as well as the comments made by the Mongolian Employers’ Federation (MONEF), communicated with the report.

Communication of texts. The Committee again requests the Government to supply, with its next report, copies of the Law on Forced Medical Treatment and Labour of Individuals Addicted to Alcohol and Narcotic Substances (2000), the Law on Forced Labour as Administrative Sanction (2000), the Law on Legal Status of Military Personnel and Persons Liable to Military Service (1992), and the Law on Emergency, 1995.

Articles 1(1) and 2(1) of the Convention. Freedom of Government employees to leave their service. The Committee previously noted that under section 24, paragraph 1(3), of the Law on Government Service (1995), government employees may be relieved of their post if they submit a request to resign from the government service. The Government indicates in its report that the competent authority of the relevant government body shall make a decision on such requests. It also states that the Law does not provide for grounds to refuse the submitted request to resign from government service. While noting that the Law contains no provisions concerning the refusal of the resignation, the Committee requests the Government to indicate whether requests for resignation have been refused in practice and, if so, what were the grounds for refusal.

Freedom of career members of the armed forces to leave their service. The Committee previously asked the Government to indicate provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service at their own request. In its report, the Government refers in this connection to section 24, paragraph 1(3), of the Law on Government Service referred to above. However, section 3(3) of the Law does not seem to include military service into the scope of this Law. The Committee requests the Government to clarify this issue and to indicate clearly the provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee notes the Government’s explanations in the report concerning the use of internal troops under the Law on Internal Military, 1995. It requests the Government to indicate what guarantees are provided to ensure that services exacted under compulsory military service provisions of the Law on the Legal Status of Military Personnel and Persons Liable to Military Service, 1992, are used for purely military ends.

Article 2(2)(c). Prison labour. The Committee notes the Government’s indication in the report that, under the Law on Enforcement of Court Decisions, 2002, prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. Under section 120 of the Law, prison labour is compulsory for convicts. The Government further indicates, in particular, that, in 2002, a women’s prison contracted with three private companies for prisoners to sew shirts, harvest crop and work in a cashmere factory. According to the report, some labour contracts present the following conflicts: payment for prison labour is less than that paid to other workers for the same services; some companies hire prisoners as a source of cheap labour; uniforms, necessary tools, equipment and occupational safety measures are not reflected in the labour contracts; and the duration of working hours is specified unequally. Moreover, the Government indicates that some entities employ prisoners without a labour contract.

While noting these indications, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to, or placed at, the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private companies, even under public supervision and control. In fact, under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to, or placed at, the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are applied cumulatively, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to, or placed at, the disposal of private individuals, companies or associations.

Referring to the explanations in paragraphs 59–60 and 114–120 of its General Survey of 2007 on the eradication of forced labour, the Committee points out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain the prisoners’ formal, informed consent to work for private enterprises, both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health.

The Committee therefore hopes that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private companies both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as explained above. The Committee requests the Government to provide, in its next report, information on the progress made in this regard. Pending the adoption of such measures, the Committee asks the Government to continue to supply information on the work of prisoners for private companies, including sample copies of the labour contracts concluded with convicts, as well as contracts concluded between penitentiary institutions and private users of prison labour.

Compulsory labour imposed as an alternative to imprisonment. The Committee notes that, under section 50 of the Criminal Law, an obligation to perform labour may be imposed on a convicted person for 100 to 500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration. It may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations. Referring to the above considerations concerning the prohibition contained in Article 2(2)(c), as well as to the explanations in paragraphs 123–128 in its General Survey of 2007 on the eradication of forced labour, the Committee requests the Government to indicate, in its next report, whether such labour can be performed for any private institutions, such as, e.g. charitable bodies, and to provide a list of authorized associations and institutions, giving also examples of the types of work to be performed by convicted persons. Please also communicate a copy of Decree No. 276 (2002) of the Minister of Justice and Home Affairs concerning this issue.

Article 2(2)(d). Cases of emergency. The Committee notes the Government’s indication in the report that, under the Law on Emergency (1995), once a state of emergency is declared, the citizens’ rights can be limited regarding, inter alia, termination of employment and transfer; working hours, days and shifts; and the call up of labour among the public “in order to cease occurred danger and circumstances”. The Committee also notes that, under section 20.2 of the Law on Disaster Protection, 2003, the citizens have a duty to participate in disaster prevention and take part in disaster protection resource units. The Committee requests the Government to indicate, in its next report, what guarantees are provided to ensure that the power to call up labour during a state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in case of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.

Article 25. Penal sanctions regarding trafficking in persons. The Committee notes the Government’s indication in the report that, in 2006–08, there were 29 cases of human trafficking. The Committee requests the Government to provide information on the judicial decisions regarding human trafficking, particularly those applying section 113 of the Criminal Code punishing trafficking in persons. Please also continue to provide information on various measures to combat trafficking taken under the National Anti-Trafficking Action Plan, indicating, in particular, the measures taken with a view to strengthening the legal framework regarding human trafficking and protecting the victims.

Please also provide information on any other legal proceedings which might have been instituted as a consequence of the illegal exaction of forced or compulsory labour and on the penalties imposed.