Demande directe (CEACR) - adoptée 1993, publiée 80ème session CIT (1993)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

1. In earlier comments, the Committee asked for information on work carried out by persons performing compulsory military service.

The Committee noted the information supplied by the Government to the effect that, in pursuance of section 53 of the Compulsory Military Service Act, section 5(b) of Legislative Decree No. 434 (the Ministry of Defence Act) and section 280 of the Political Constitution of the State, the personnel of the Armed Forces, which includes conscripts, participate in the following National Development Programmes: the National highways plan; Rural settlements; Support for regional development and Civic and military action. Persons performing compulsory military service participate in the above activities as auxiliaries to technical staff and as unskilled workers.

The Committee recalls that under the Convention only work of a purely military nature is outside the scope of the instrument and asks the Government to take the necessary measures to ensure that conscripts can only be called upon to perform work or services of a purely military nature, in conformity with Article 2, paragraph 2(a), of the Convention except in the case of force majeure.

2. Freedom of persons in the service of the State to leave their employment. In its previous direct request, the Committee asked the Government to supply a copy of the rules governing the situation of career members of the armed forces in respect of their freedom to leave their employment during peacetime at their own initiative within a reasonable period, either at specified intervals or with previous notice.

The Committee noted the information supplied by the Government to the effect that officers of the Peruvian Army, Navy and Air Force can obtain discharge upon application under sections 33(d) and 41(f) of Legislative Decree No. 20765 of 22 October 1974, subject to the time limits set forth in sections 28, 29, 38 and 41 of the same Decree.

Technical staff, non-commissioned officers and naval officials may apply for discharge under the provisions of Presidential Decree No. 003-82-CCFA of 22 April 1982, subject to the time limits laid down in sections 30, 31, 40 and 41 of the same Decree.

The Committee requests the Government to provide a copy of Legislative Decree No. 20765 of 22 October 1974 (Act respecting the military status of officers of the Peruvian Army, Navy, and Air Force) and Presidential Decree No. 003-82-CCFA of 22 April 1982 (Act respecting the military status of technical personnel, non-commissioned officers and naval officials of the Peruvian Armed Forces).

3. In previous comments, the Committee noted section 131(c) of the Regulations of the Code of Penal Procedure (Presidential Decree No. 012-85 of 12 June 1985) under which work may be supplied to prisoners by individuals through the prison administration.

The Committee noted that the Government referred to the guarantees relating to wages and social security provided for in the Regulations issued under the Code of Penal Procedure.

The Committee noted, however, that the above Regulations do not provide for the explicit consent of prisoners for the acceptance of employment in cases in which work is provided by individuals.

With regard to wages, the Regulations lay down in section 126 the form in which they shall be distributed, but make no reference to how the wages to be received by prisoners when they are employed by individuals are to be determined.

The Committee noted that, according to the information supplied by the Government, prisoners seek and obtain work contracts with individuals or private enterprises either directly or through their relatives, in order to obtain "partial release" and that care is taken to ensure that they receive the legal minimum wage.

The Committee recalls that, as it indicated in paragraphs 97-99 of its General Survey of 1979 on the abolition of forced labour, the employment of prisoners by private individuals or enterprises is only compatible with the Convention under conditions of a free employment relationship, namely, one based on the explicit consent of the persons concerned and subject to the corresponding guarantees regarding wages and social security.

The Committee requests the Government to provide information on any measures taken to ensure that prisoners employed by individuals or private enterprises are able to give their consent, and on the methods of determining the wages paid by these enterprises or private individuals to prison labourers.

The Committee also asks the Government to provide a copy of work contracts between prisoners and private employers that have been approved by the prison administration.

4. Compulsory prison labour as a consequence of a conviction. The Committee referred in previous comments to the discrepancy between section 132 of the Penal Code (former version) which provided for the compulsory labour of convicted persons and detainees, and the Code on Penal Procedure of 1985 (Legislative Decree No. 330) which established the optional nature of prison labour for prisoners who have been brought to trial (section 75).

The Committee noted that the provision of section 132 mentioned above is not contained in the new Penal Code (Legislative Decree No. 635 of 25 April 1991).

The Committee also notes the promulgation of the Code of Penal Procedure (Legislative Decree No. 654 of 31 July 1991 which repeals Legislative Decree No. 330 of 1985). Under section 65 of the new Code of Penal Procedure, "work is a right and a duty of prisoners ...". However, no provision in Chapter 2 concerning work specifies the optional nature of prison labour for prisoners who have been brought to trial.

The Committee recalls that under the Convention work may only be exacted from prisoners as a consequence of a conviction, which does not prevent persons in custody who are awaiting trial or sentence from working, if they so wish, on a purely voluntary basis.

The Committee asks the Government to provide information on the measures taken or under consideration to establish the optional nature of prison labour for prisoners who have been brought to trial.