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Observación (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Alemania (Ratificación : 1956)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - Alemania (Ratificación : 2019)

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Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private enterprises. In comments made for a number of years, the Committee referred to the situation of prisoners in the country who, in law and practice, are obliged to work, without their consent, in workshops run by private enterprises within state prisons, in conditions not comparable to those found in the free labour market. The Committee recalled that work by prisoners for private enterprises can be held compatible with 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, by giving their formal, free and informed consent to work for private enterprises. In such a situation, work of prisoners for private parties would not come under the scope of the Convention, since no compulsion is involved. Moreover, the Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is that the work is performed under conditions which approximate a free labour relationship, including wages, social security and occupational safety and health. In this connection, the Committee previously noted that the requirement of the prisoner’s formal consent to be employed in a workshop run by a private enterprise, laid down in section 41(3) of the Act on the execution of sentences of 1976, had been suspended by the Second Act to improve the budget structure, of 22 December 1981. It therefore requested that measures be taken to ensure that formal, free and informed consent is required for the work of prisoners in private enterprise workshops inside prison premises.
The Committee notes the information in the Government’s report that in September 2011, ten federal states (Länder) (Brandenburg, Berlin, Bremen, Mecklenburg-Western Pomerania, Rhineland-Palatinate, Schleswig-Holstein, Saarland, Saxony and Thuringia) presented a common model Penal Enforcement Bill, and that this model does not require a prisoner to work. The Committee welcomes this initiative and notes that section 22(1) of the model Penal Enforcement Bill states that work shall be assigned to prisoners upon their request or with their consent. The Committee notes, however, the Government’s statement that it is unsure of the extent to which this particular aspect of the model legislation will be followed by legislators in the various Länder. The Committee further notes the Government’s indication that as of 2010, 60.19 per cent of prisoners were employed and that 14.94 per cent of all prisoners were employed with private enterprises (ranging from below 1 per cent to 22.6 per cent in the respective Länd). The Government states that the employment of prisoners contributes to their social rehabilitation and that prisoners are in need of the wages provided in order to meet maintenance payments, pay debts and purchase items for their personal use. Additionally, the Committee notes the Government’s reiteration that there continues to be a job shortage in prisons and that prison authorities therefore welcome jobs made available by private enterprises. Taking due note of the information provided by the Government and with reference to paragraphs 278 and 279 of the 2012 General Survey on the fundamental Conventions concerning rights at work, the Committee urges the Government to take the necessary measures to encourage the enactment of the model Penal Enforcement Bill in the ten Länder concerned, to ensure that work may only be performed by prisoners in private enterprise workshops with their formal and informed consent, and that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship. It requests the Government to continue to provide information on developments in this regard, as well as a copies of the relevant legislation adopted in each Länd pursuant to this model Bill. In addition, the Committee trusts that similar measures will soon be taken in the remaining six Länder to grant prisoners working for private enterprises within prison workshops a legal status and conditions of employment that are compatible with this Convention. It requests the Government to provide information on the measures taken or envisaged in this regard, in its next report.
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