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

The Committee notes the Government’s report, the comments of the National Confederation of Private Business Institution (CONFIEP) communicated by the Government with its report, and the comments on the application of the Convention made by the General Confederation of Workers of Peru (CGTP), which were forwarded to the Government on 16 November 2009.

Articles 1(1) and 2(1) of the Convention. 1. Forced labour in indigenous communities. For many years, the Committee has been examining the situation of members of indigenous communities who are victims of forced labour practices (slavery, debt bondage and serfdom), particularly in sectors such as agriculture, stock-raising and forestry. It referred in particular to the region of Atalaya, the harvesting of chestnuts in Madre de Dios and widespread forced labour in illegal timber activities in the region of Ucayali. The Committee noted the establishment in 2007 of the National Commission to Combat Forced Labour and the approval of the National Plan to Combat Forced Labour, the objective of which is to address structural issues (the vulnerability of victims) and take coordinated measures to resolve situations of forced labour in practice. The Committee noted the various components of the National Plan and requested the Government to provide information on their implementation and the results achieved. The Committee observes in this respect the CGTP’s view that the measures adopted for the implementation of the Plan are inadequate. The CONFIEP however gives a favourable assessment of the manner in which the Government is combating forced labour.

Legislative measures. One of the objectives of the National Plan is the existence of legislation that is in conformity with international standards respecting freedom of work and rules which give a legal basis for action to combat forced labour. The Government has previously acknowledged that the legislation does not contain specific provisions encompassing the whole of the issue of forced labour and that it is necessary to update and harmonize the penal, civil and labour legislation on this matter. The Committee notes the Government’s indication in its last report that there is not yet legislation specifically criminalizing forced labour and determining its constituent elements, although a legislative proposal is being studied which should be examined soon by the Congress. The Government, however, specifies that other provisions of the national legislation protect the right to freedom of work, such as section 168 of the Penal Code, which establishes a sentence of imprisonment for any person who obliges or threatens another person with a view to the performance of work without receiving the corresponding remuneration, and section 153 which criminalizes and defines the constituent elements of trafficking in persons. The Government considers that, in view of the fact that this section defines the constituent elements of the crime of trafficking in persons with reference to its purpose, namely exploitation, the victims of forced labour could benefit from the protection and assistance guaranteed on the basis of this section. The Government finally hopes that the legislation will soon be supplemented by a Bill which will bring the national legislation into conformity with the Convention.

The Committee notes this information. The Committee recalls in this respect that forced labour, as established by the Convention, is a broader concept than trafficking in persons and that it is important for national jurisdictions to have precise provisions, taking into account the principle of the strict interpretation of penal law. The Committee therefore hopes that the Government will take the necessary measures to ensure that the legislative initiative to which it refers results in the adoption of penal provisions specifically criminalizing forced labour and defining the constituent elements of forced labour so as to cover all the forced labour practices existing in the country. Finally, referring to its previous observation, the Committee would be grateful if the Government would indicate whether it has followed up the proposal in the National Plan to formulate a Bill to regulate private employment agencies and labour recruitment systems, by giving emphasis to the prevention of forced labour and by including them within the competence of the labour inspectorate.

Labour inspection. The Committee notes that the National Plan envisages the reinforcement of the labour inspectorate, particularly through the establishment of mobile inspection units in areas difficult to access and the establishment of machinery to receive complaints and forward them to the corresponding services. The Government indicates that a special labour inspection unit to combat forced labour (GEIT) was created in August 2008. This unit, composed of five labour inspectors and headed by a supervisor, undertook its first mission between September and December 2008. The mission aimed at inspecting timber activities in the Department of Loreto and to develop the investigatory capacities of the GEIT. The GEIT concluded that in this Department the system of “habilitación” remains a widespread means of recruiting mixed race and indigenous labour for timber extraction. The second mission consisted of an operational plan to inspect export enterprises in the timber sector, and particularly in forestry concessions that are distant from towns. The Government adds that financial difficulties have prevented the GEIT from travelling to distant areas and communities. It further indicates that the GEIT has conducted preliminary investigations into situations of forced labour in agro-industrial and mining activities.

The Committee notes this information. It also notes that, in its comments, the CGTP emphasizes that the GEIT is established in the capital, Lima, and not in the area where forced labour is widespread, namely in the Amazon forest. This makes it difficult to achieve the objectives set out in the National Plan. The Committee considers that the specialization of a group of inspectors in combating forced labour constitutes a positive element. However, it observes with concern that the GEIT does not appear to have the financial resources to carry out its missions. The Committee requests the Government to provide information on the measures adopted to ensure that the GEIT is provided with adequate human and material resources to be able to travel rapidly, effectively and safely throughout the national territory. Please indicate the number of inspections carried out, the situations of forced labour reported and the judicial action taken as a result of the violations reported.

Awareness raising and prevention. The Committee notes the detailed information provided by the Government concerning the measures adopted to disseminate information and raise awareness on the problem of forced labour. It observes in particular the draft communication strategy which, in the absence of financing, has not yet been implemented. It also notes the web page of the Ministry of Labour and Employment Promotion devoted to forced labour; the decentralized action taken by the Ministry of Education to disseminate the National Plan, and to carry out awareness-raising and prevention activities among teachers, students and parents, with emphasis on rural areas where the population is most vulnerable; the broadcasting of television programmes on forced labour on the State channel; the awareness-raising and training activities undertaken in training institutions for the police and officials in institutions working in fields linked to the issue of forced labour. The Committee encourages the Government to continue developing this type of awareness-raising activities and requests it to provide information on this subject. It would also be grateful if the Government would indicate the measures adopted to improve the identification of victims and establish their number, and on whether the proposals in the National Plan have been implemented for the preparation of studies on forced labour in certain sectors and the periodic development of assessments of the forced labour situation.

2. Domestic work under conditions of forced labour. The Committee noted previously the allegations of forced labour practices of which certain women domestic workers are reported to be the victims. It notes the information provided by the Government on the numerous activities undertaken to ensure that women domestic workers are aware of their rights, both through training workshops and information campaigns (distribution of brochures, posters, television programmes). The Committee observes that the GCTP confirms in its comments that many women domestic workers are subject to violation of their rights amounting to forced labour. The trade union refers to women workers who are exploited and obliged to work over 18 hours a day without receiving remuneration, or with their remuneration being paid in kind, and who are deprived of their freedom of movement or their identity papers. The CGTP emphasizes that it is necessary to amend the legislation and to develop a quantitative and qualitative assessment of forced labour in this sector since, in the absence of such an evaluation, it is difficult to combat this form of forced labour. The State should also make available to women domestic workers the tools through which they can assert their rights. The Committee trusts that the Government will take every necessary measure to ensure the protection of women domestic workers against the imposition of practices which amount to forced labour, both at the legislative level and in practice, providing the necessary assistance so as to enable them to assert their rights and denounce any abuses of which they may be victims.

3. Trafficking in persons. In addition to the adoption of the provisions in the Penal Code which criminalize and define the constituent elements of trafficking in persons, referred to above, the Committee notes the creation of the Division to Combat Trafficking in Persons in the Criminal Investigation Directorate of the National Police. The Government indicates that this Division works with the GEIT on the complaints lodged over the telephone line established for that purpose by the Ministry of the Interior concerning trafficking in persons for the exploitation of their labour. The Government also refers to the system for the recording and compilation of statistics on the crime of trafficking in persons and similar offences, through which indicators are established on complaints, investigations, locations, offences, identities and types of trafficking. A telephone line available 24 hours a day, seven days a week, has also been set up with professionals to provide assistance and advice to victims of trafficking and who can, where appropriate, forward complaints to the police services. The Committee requests the Government to continue to provide information on the measures adopted to combat trafficking in persons, and particularly to protect and assist victims. Please provide information on the results obtained by the Division to Combat Trafficking in Persons of the National Police, the difficulties encountered and the measures adopted to overcome them.

Article 25. Effective and strictly applied penal sanctions. The Committee previously noted the lack of specific provisions in criminal law to repress and punish forced labour, which prevented effect to be given to Article 25 of the Convention, under which the illegal exaction of forced or compulsory labour shall be punishable as a penal offence and the penalties imposed have to be really adequate and strictly enforced. The Committee notes that the Government provides information in its report on certain procedures that have been established to enable victims to denounce their situation (free telephone line for trafficking in persons and on-line denunciation on the web page devoted to forced labour of the Ministry of Labour). The Committee observes that the Government does not provide any information on the initiation of prosecutions against persons charged with the exaction of forced labour.

The Committee emphasizes that, as indicated above, forced labour practices in Peru take various forms (including practices similar to slavery or debt bondage of indigenous populations and exploitation of women domestic workers) and it appears that the legislation that is currently in force is inadequate for the punishment of those responsible for these practices. The Committee observes the emphasis placed by the CGTP on the fact that, when situations of forced labour are identified, the lack of an adequate legal basis for bringing criminal charges before the court prevents the punishment of those responsible. In these circumstances, the Committee refers to its comments set out above on the need to adopt specific provisions criminalizing forced labour and defining its constituent elements, as a basis upon which the police and prosecution authorities can initiate judicial procedures against those responsible for the various forms of forced labour existing in Peru. With regard to trafficking in persons, the Committee requests the Government to provide information on the effect given in practice to sections 153 and 153A of the Penal Code and to provide copies of relevant court rulings. Please also indicate whether criminal courts have handed down decisions under section 168 of the Penal Code.

Finally, the Committee notes that, under the terms of section 25 of the Regulations issued under the General Act on Labour Inspection (Supreme Decree No. 019-2006-TR), forced labour, whether paid or not, and trafficking in, or the abduction of persons for the purpose of forced labour constitutes a very serious offence from the labour relations perspective and is punishable with an administrative sanction (fine). The Committee requests the Government to provide information on the penalties applied under this provision, with an indication of their number and amount.