Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Mongolia (Ratificación : 2005)

Otros comentarios sobre C029

Observación

Solicitud directa

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Articles 1(1) and 2(1) of the Convention. Freedom of career members of the armed forces to leave their service. The Committee previously noted the Government’s indication that army officials are considered public servants, their rights are governed by the Mongolian Public Service Law and the Law on the Rights and Duties of Civil Soldiers. It requested the Government to provide information on the conditions under which career members of the armed forces may leave the service, in time of peace, at their own request, and to indicate the number of applications to resign that have been accepted or refused.

The Committee notes the Government’s statement that statistical information is not available in this respect. It recalls that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of their right to leave the service in peacetime within a reasonable period, either at specific intervals, or with previous notice. The Committee requests the Government to indicate whether members of the armed forces are free to leave the service in peacetime within a reasonable period, and to clearly indicate the provisions applicable in this regard.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee previously noted that the Law on Civil Military Services Duties and Legal Status of the Military Servicemen provides a legal framework for military service, which is compulsory for men aged between 18 and 25. Section 3 of the Law stipulates the scope of work and duties of an army official that military service is a special form of public service and consists of real military service and training. The Committee however noted that by virtue of resolution No. 107 of 22 March 2013, the Government has established the “Mongolian conscripts for reconstruction” project, pursuant to which it is possible to engage a number of army staff to work in mining, construction and infrastructure development. It requested the Government to provide information on the application in practice of this resolution.

The Committee notes that the Government does not provide any information on this matter. It notes that the revised Law on the Armed Forces, adopted in 2016, provides that the participation in reconstruction work is one of the duties of the armed forces (section 6.2.4). It also notes that construction-engineering units are included among the institutions that constitute the Mongolian military forces (section 7.3). The Committee notes that, according to the 2016 Report “Compulsory military service and conscript labour in Mongolia” of the National Human Rights Commission of Mongolia and the ILO, conscripts are involved in non-military work for the benefit of both public and private institutions. This Report indicates that non-military nature work performed by conscripts is often voluntary. However, the Committee notes that the choice is made within the context and on the basis of compulsory national service, as envisaged by the law. The existence of such a choice is not sufficient to obscure the fact that the persons concerned are mobilized in the framework of a statutory national service obligation, without necessarily performing work related to the need to ensure national defence, whose objective is at the basis of the exception allowed by Article 2(2)(a) of the Convention. The Committee requests the Government to take the necessary measures to amend its legislation in order to ensure that any work or service exacted by virtue of compulsory military service laws are of purely military nature, so as to be in conformity with the Convention. Pending the revision, the Committee requests the Government to provide information on the number of conscripts assigned to participate in non-military work.

Article 2(2)(c). 1. Work of prisoners for the benefit of private individuals. The Committee previously noted that under the Law on Enforcement of Court Decisions (2002), prison labour is compulsory for convicts, and prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. It noted that the Law on Court Decision Enforcement requires working conditions of the prisoners to be close to those in the normal labour market pursuant to section 120. Section 121 of the same Law provides that prisoners shall be paid a salary which is appropriate to the amount and quality of work done. The Committee requested the Government to continue to provide information on the work of prisoners for private companies and to provide copies of contracts concluded between a private enterprise and a penitentiary institution concerning the work of convicted prisoners.

The Committee notes the absence of information on this subject in the Government’s report. It notes the adoption of a revised Law on Enforcement of Court Decisions, on 9 June 2017. The Law provides for the detention facility internal regulations to organize compulsory labour by administrative procedure (section 145). Section 215 provides for the transfer of the prisoners’ wages to the account of the prison, and to the detainee’s account following wage deductions. Section 217 provides for labour work outside of the prison.

The Committee notes that the 2016 Study “Prison labour and employment conditions of convicts in Mongolia” of the National Human Rights Commission of Mongolia and the ILO indicates that the three prisons surveyed had contracts with private enterprises. Some inmates stated that they have been ordered to perform compulsory work for private employers. The Study further indicates that the majority of the respondents had not signed employment contracts for any work they were carrying out, and that there was evidence of unpaid labour and wage deductions that brought prisoners’ net wages close to zero. The Committee also notes that, in its observations and recommendations of December 2018, the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressed concern that in both closed and open prison regimes, work opportunities are not always remunerated (CAT/OP/MNG/1, paragraph 72). The Committee wishes to recall that prisoners’ work for private entities is permissible under Article 2(2)(c) of the Convention only if prisoners voluntarily enter into a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal, free and informed consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. The Committee therefore requests the Government to take the necessary measures to ensure that any work or service performed by prisoners for private entities is carried out voluntarily, with their formal, freely given and informed consent, and with conditions of work approximating those of a free labour relationship, including the signing of employment contracts and the payment of wages. The Committee requests the Government to provide information in this respect.

2. Compulsory labour imposed as an alternative to imprisonment (sentence of community work). In its earlier comments, the Committee noted that an obligation to perform work may be imposed on a convicted person for 100–500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration under section 50 of the Criminal Law. The Committee requested the Government to indicate the provisions governing compulsory labour as an alternative to imprisonment and to provide information on the institutions entitled to take on persons sentenced to community work and on the type of work carried out for these institutions.

The Committee notes the Government’s information that the revised Criminal Code of 2015 sets the conditions of a sentence of socially useful labour under section 5.4. It notes that socially useful labour is unpaid work of benefit to society, pursuant to a court decision, for 240–720 hours. The Government indicates that the offices of the heads of provinces and urban districts determine the conditions under which convicted persons are assigned to carry out socially useful labour. It states that in Songinokhairkhan district of Ulaanbaatar, 15 individuals were sentenced to and carried out socially useful work, in a furniture service organization. The Committee recalls that pursuant to Article 2(2)(c) of the Convention, labour exacted as community work as a consequence of a conviction in a court is not regarded as a form of forced labour only if the service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee requests the Government to indicate the nature of institutions for which offenders may perform socially useful labour, to provide a list of the institutions authorized to take on offenders performing such sentences, and to give examples of the types of work that may be required under this penalty.