Observation (CEACR) - adoptée 1994, publiée 81ème session CIT (1994)

The Committee notes the information supplied by the Government in its report.

Article 2, paragraph 2(c), of the Convention. In the comments it has been making for a number of years, the Committee has observed that contrary to the Convention, prisoners are placed at the disposal of private enterprises and that the provisions of the Act on the execution of sentences, adopted in 1976, to bring practice into conformity with the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to be employed in a workshop maintained by a private enterprise, as laid down in section 41(3) of the 1976 Act, which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the budget structure, of 22 December 1981; the 1976 Act also recognizes the prisoner's right to wages, but a provision for increases above the initial amount, which is 5 per cent of the average wage of wage-earners and salaried employees, was not given effect; finally, legislation which was to extend sickness and old-age insurance to prison labour was not adopted.

The Government stated previously its intention to fully implement the principles contained in the 1976 Act (inclusion of prisoners in the health and pension insurances schemes; consent of the prisoner to be employed in workshops run by a private enterprise). It also stated that a Bill to increase the remuneration of prisoners to 6 per cent of the average remuneration of wage-earners and salaried employees had been submitted to the Parliament. In its report for the period ending 30 June 1991, the Government noted however that this Bill, which was introduced in Parliament during its 11th period, had not been definitively examined and was not submitted to Parliament during its 12th period. The finances of the federal States are currently in a situation in which a new initiative by the federal Government would have little chance of success. This also applies to the coverage of prisoners under the sickness and old-age insurance schemes.

The Committee also noted the Government's statement that it envisaged a solution in the long-term which would take greater account of the obligations deriving from Article 2, paragraph 2(c), of the Convention.

The Committee notes the information supplied by the Government in its latest report, and particularly its renewed statement that it is continuing to endeavour to take greater account of the provisions of the Convention. The Government refers in this connection to the formulation of draft legislation to regulate for the first time in an overall and in-depth manner the execution of sentences by young offenders, which provides in section 42(2) for the formal consent of young prisoners to being employed in workshops run by private enterprises. The Government states that this draft, which has already been examined by the various departments concerned, should be submitted to the legislative bodies, subject to its approval by the Council of Ministers.

The Committee notes this information with interest and requests the Government to supply information on any development in the situation in this respect, and particularly to supply any text adopted by the federal legislatures. The Committee hopes that the Government will also supply information on the provisions which are envisaged to provide young prisoners with the required guarantees and safeguards in respect of wages and social security.

The Committee recalls that Article 2, paragraph 2(c), of the Convention explicity prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law be placed at the disposal of private individuals, companies or associations. Only work performed in conditions of a free employment relationship can be held not to be incompatible with this prohibition; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the labour relationship being regarded as free one.

The Committee trusts that the necessary measures will be taken to ensure the observance of the Convention in respect of both young prisoners and all prisoners in general.