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

Following its previous comments on the applicability of the Criminal Code of Bosnia and Herzegovina (hereinafter, BiH Criminal Code), the Committee notes the Government’s information that according to section 11 of the BiH Criminal Code its provisions are directly applicable to the Republika Srpska, the Federation of Bosnia and Herzegovina and the District of Brcko.

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 had previously noted that the BiH Criminal Code does not contain any provisions prohibiting the trafficking of children for labour and sexual exploitation. However, the Committee notes that the BiH Criminal Code contains provisions prohibiting trafficking in persons. According to section 186 of the BiH Criminal Code, any person who takes part in the recruitment, transfer, harbouring or receipt of persons by means of threat, coercion, abduction, of deception, of the abuse of power or of the giving or receiving of payments or benefits, for the purpose of exploitation shall be punished by imprisonment for a term between one and ten years. Subsection (2) of section 186 further states that where such offence is committed against a juvenile (person who has not reached 18 years of age, section (1)), the punishment shall be imprisonment for not less than five years. The term “exploitation” as used in this provision shall include exploiting by way of prostitution or other forms of sexual exploitation, forced labour, slavery or slavery-like practices.

II. Republika Srpska. The Committee had previously noted that section 188(4) of the Criminal Code of Republika Srpska (as per the amended version of the Criminal Code this provision is now under section 198(4)), which prohibits the trafficking of persons under 21 years for sexual services, did not cover the trafficking of persons for labour exploitation. The Committee notes, however, that this is covered by section 186 of the BiH Criminal Code.

III. District of Brcko. The Committee notes the Government’s information that the provisions of section 186 of the BiH Criminal Code, which prohibit the sale and trafficking of juveniles for labour and sexual exploitation, also apply to the District of Brcko.

2. Slavery, bondage, serfdom and forced or compulsory labour. District of Brcko. The Committee had previously requested the Government to provide information on the provisions prohibiting slavery and the forced labour of children under 18 years in the District of Brcko. The Committee notes the absence of information in the Government’s report. However, the Committee notes that section 147 and section 185 of the BiH Criminal Code contain provisions prohibiting the unlawful deprivation of freedom of another person and establishment of slavery and transport of slaves including a child or a juvenile.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee had previously requested 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 had also requested 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. The Committee notes the Government’s information that it has adopted the Law on Defence of Bosnia and Herzegovina in 2006 which applies to the whole territory. Section 79 thereof abolished the compulsory recruitment of the citizens of Bosnia and Herzegovina and the armed forces of Bosnia and Herzegovina now consists of professional military personnel and members of reserve personnel who are engaged in military services, civilians and cadets. The Government further states that, according to section 9 of the Law on Service in the Armed Forces of Bosnia and Herzegovina, only persons who have attained 18 years of age shall be admitted into military service.

Clause (b). 1. Use, procuring or offering of a child for prostitution. 
I. Federation of Bosnia and Herzegovina. The Committee had previously noted that section 210(4) of the BiH Criminal Code which prohibits procuring or offering of a child for prostitution does not contain a prohibition on the use of a child for prostitution. The Committee notes that according to section 213, subsections (2) and (3) of the BiH Criminal Code, whoever performs sexual intercourse or similar sexual acts with a child or a juvenile shall be punished by imprisonment for a term between one and ten years.

II. Republika Srpska. The Committee had previously noted that section 188 of the Criminal Code of the Republika Srpska (section 198(4), as per the amended version of the Criminal Code) establishes penalties for any person who procures or offers a child or a minor for prostitution. The Committee had asked 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. The Committee notes that according to section 195 of the Criminal Code, as amended, whoever performs sexual intercourse or any other sexual acts with a child shall be punished by imprisonment for a term of one to eight years. The Committee requests the Government to indicate whether the term “child” as used in section 195 of the Criminal Code refers to persons under the age of 18 years.

III. District of Brcko. The Committee had previously requested 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. The Committee notes that according to section 187(3) of the BiH Criminal Code, any person who procures, entices or leads away a child or a juvenile to offer sexual services in another state, away from their place of residence shall be punished. The Committee notes that this provision does not cover children involved in prostitution within their place of residence. It also notes that the BiH Criminal Code does not contain any prohibition on the use of young persons under 18 years of age for prostitution. The Committee requests the Government to indicate the measures taken to prohibit the use, procuring or offering of children under 18 years of age within the whole territory, including the place of residence of the children concerned. It also requests the Government to indicate the provisions which prohibit the use of children under 18 years for prostitution applicable in the District of Brcko.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. District of Brcko. Noting the absence of information in the Government’s report, the Committee once again 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 had previously noted section 238 of the BiH Criminal Code which prohibits the unauthorized production and sale of narcotics. The Committee notes that although section 195 of the BiH Criminal Code prohibits the illicit trafficking of narcotic drugs, it does not contain any specific provision to prohibit the use, procuring or offering of a child for such an offence. Noting the absence of information in the Government’s report, the Committee once again 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 under 18 years for illicit activities, in particular for the production and trafficking of drugs.

II. Republika Srpska. The Committee notes the Government’s information that according to section 224 of the Criminal Code of the Republika Srpska, whoever, without authorization, produces, processes, sells or offers for sale, or purchase for sale, keeps or transports or acts as intermediary in a sale or purchase, or otherwise puts into circulation intoxicating drugs or substances shall be punished. Subsection (2) of section 224 further states that any person who uses a child or a minor for committing the above offence shall be punished by imprisonment for a term of between three and fifteen years. 

III. District of Brcko. Noting that section 195 of the BiH Criminal Code does not specifically prohibit the use, procuring or offering of a child for the production or trafficking of drugs, the Committee requests the Government to identify and provide the text of the legal provisions applicable to the District of Brcko which prohibit the use, procuring or offering of a child for the production or trafficking of drugs.

Article 3, clause (d), and Article 4(1). Hazardous work. I. Federation of Bosnia and Herzegovina. Following its previous comments, the Committee notes the Government’s information that no regulation, pursuant to section 51(2), which determines hazardous types of work prohibited to minors has been passed. The Government further states that it is for the physicians to assess whether a minor can obtain a certificate of ability to work in certain jobs. The Committee recalls that, according to Article 4(1) of the Convention, the types of work considered as hazardous are to be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). The Committee requests the Government to take the necessary measures to adopt a regulation determining the types of hazardous work prohibited for persons under the age of 18 years, after consultation with the employers’ and workers’ organizations concerned. It requests the Government to provide information on any progress made in this regard.

II. Republika Srpska. The Committee had previously noted 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 notes the Government’s information that in the Republika Srpska there is only a symbolic number of workers aged between 15 and 18 years, and that the establishment of jobs where juveniles cannot work is regulated by the provisions of sectoral and specific collective agreements. The Committee requests the Government to provide more detailed information on the procedure to be followed in the determination process as well as information on the scope of application of the lists determined by collective agreement. It also asks the Government to communicate copies of these lists as soon as they have been determined.

III. District of Brcko. The Committee had previously noted that, according to section 41(2) of the Labour Law of the District of Brcko, the types of work prohibited to persons aged 15–18 years are determined by collective agreement. The Committee notes the absence of information in the Government’s report. The Committee requests the Government to provide detailed information on the procedure to be followed in the determination process as well as information on the scope of application of the lists determined by collective agreement. It also asks the Government to communicate copies of these lists as soon as they have been determined.

Article 5. Monitoring mechanisms. Labour inspection. I. Federation of Bosnia and Herzegovina. The Committee notes the report supplied by the Government on the functioning of the labour inspection services in the Federation of Bosnia and Herzegovina for the year 2008–09. However, it notes that this report does not contain any information with regard to the employment of children and young persons. The Committee requests the Government to communicate the results of labour inspections conducted, including the number of workplaces investigated per year, and on the findings with regard to the extent and nature of violations detected concerning children involved in the worst forms of child labour.

II. Republika Srpska. Following its previous comments, the Committee notes the Government’s information that according to the regular annual reports of the labour inspection of the Republika Srpska, no violation of the provisions of the Convention was detected.

Article 6. Programmes of action to eliminate the worst forms of child labour. 1. Action Plan for Children 2002–10. The Committee had previously noted that an Action Plan for Children was initiated in 2002, with the aim of improving and strengthening the status of children in the country. It had also noted that a Council for Children was established as a body to monitor the implementation of this action plan. The Committee notes that according to a report by the Council of Europe’s Commissioner for Human Rights on his visit to Bosnia and Herzegovina in June 2007, while welcoming the measures proposed to be undertaken by this action plan, he expressed his concern that the practical impact of the action plan and the Council of Children remained limited. The Committee therefore requests the Government to take the necessary measures to effectively implement the action plan for children and to strengthen the functioning of the Council for Children. It requests the Government to provide information on any progress made in this regard.

2. Action Plan for the Prevention of Human Trafficking 2008–12. The Committee notes that according to a report published by the United Nations Office on Drugs and Crime entitled “Global Report on Trafficking in Persons” February 2009, the current action plan for the prevention of human trafficking covers the period 2008–12. The Committee requests the Government to provide information on the measures taken to effectively implement the Action Plan for the Prevention of Human Trafficking 2008–12 and on its impact on preventing and combating the trafficking of children under the age of 18 years.

Article 7(1). Penalties. I. Federation of Bosnia and Herzegovina. The Committee had previously noted that sections 179, 180, 210(4) and 211 of the BiH Criminal Code and sections 32, 36 and 51 of the Labour Law of the Federation of Bosnia and Herzegovina establish sufficiently effective and dissuasive penalties 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 and for the violations related to overtime and night work of minors and the employment of minors in hazardous work. It also notes that section 186(2) of the BiH Criminal Code establishes penalties for the offence related to the trafficking of juveniles for sexual or labour exploitation. The Committee once again requests the Government to provide information on the application of these penalties in practice.

II. Republika Srpska. The Committee notes that sections 166, 195, 198(4), 199, 200 and 224(2) of the amended version of the Criminal Code of the Republika Srpska provide for penalties for the offences related to unlawful deprivation of freedom; sexual abuse of a child; compelling or offering a child or a minor into prostitution; abusing a child for pornographic purposes; production and screening of child pornography; and using a child or a minor for trafficking of drugs. It also notes that section 186(2) of the BiH Criminal Code establishes penalties for the offence related to the trafficking of juveniles for sexual or labour exploitation. 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(2). Effective and time-bound measures. Clause (a). Prevent the engagement of children in the worst forms of child labour. Access to free basis education. The Committee had previously noted that, in Bosnia and Herzegovina, elementary education which lasts up to eight years is free and compulsory for all children. It had also noted that secondary education forms part of the overall education system and is available under the same conditions to all pupils who have completed elementary education. However, the Committee had noted that the Committee on the Rights of the Child (CRC/C/15/Add.260, concluding observations of 21 September 2005, paragraphs 56 and 57) had expressed concern at the high number of children who were not enrolled or who dropped out of school, the 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 notes the Government’s information that according to the Education Statistics Bulletin available on the website of the Republic Statistics Institute, during the period from 2004 to 2008, the rate of elementary school drop‑outs ranged from 0.53 per cent to 0.70 per cent. The Committee notes that according to the information available in a report entitled 2008 Findings on the Worst Forms of Child Labour – Bosnia and Herzegovina (available at the website of the Office of the High Commissioner for Refugees: www.unhcr.org) the gross primary school enrolment rate, in 2007, was 97.8 per cent. The Committee further notes the statistical information provided by the Government in its report under the Minimum Age Convention, 1973 (No. 138), according to which an estimated 95 per cent to 97 per cent of children continue secondary education after completing primary education. However, according to a report by the Council of Europe’s Commissioner for Human Rights, on his visit to Bosnia and Herzegovina in June 2007, children in rural areas face several difficulties in accessing quality education and it is estimated that, in the poorest segments of the society, one in four children do not attend school at all. The report further states that the education level of Roma children is generally low and that two in five Roma have never been to school. Considering that education contributes to preventing the engagement of children in the worst forms of child labour, the Committee expresses its concern that children from several vulnerable groups are less likely to attend and complete school. The Committee requests the Government to take the necessary measures to facilitate access to free basic education, particularly for Roma children, children from national minorities and children living in rural areas. It also requests the Government to provide information on the results achieved through these measures, particularly with respect to increasing the school enrolment rates and reducing the school drop out rates of these vulnerable groups of children.

Clause (d). Identifying and reaching out to children at special risk. Roma children. The Committee had previously noted 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 had also noted 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 had noted the Government’s information that it had developed an Action Plan and Strategy for Addressing the Roma Problem. It notes, however, the Government’s statement that some occurrences of abuse of children for the purpose of begging still exist among the Roma population. It further notes the information in a report entitled 2008 Findings on the Worst Forms of Child Labour – Bosnia and Herzegovina (available on the website of the Office of High Commissioner for Refugees – www.unhcr.org) that there were reports of ethnic Roma children being trafficked to serve in begging rings. The majority of Roma children who live or work in the streets are under 14 years and do not attend any school. Noting that Roma children are at an increased risk of being engaged in the worst forms of child labour, the Committee urges the Government to take immediate and effective measures, within the framework of the Action Plan and Strategy for Addressing the Roma Problem, to ensure that Roma children are protected from these worst forms, taking account of the special situation of girls. It requests the Government to provide information on the results achieved.