Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

1. The Committee notes the detailed information supplied by the Government in its report, the information provided in reply to the comments made by the Latin American Central of Workers (CLAT) in October 1998, as well as the comments sent by the International Confederation of Free Trade Unions (ICFTU) in September 1999 which include information from Anti-Slavery International, the information supplied by the Government in its reply to these comments, which was received during the current meeting of the Committee, and data collected by two ILO missions during seminars on discrimination and forced labour held by the Turin International Training Centre in March and July 1999.

I. Information on forced labour practices

2. With regard to the comments sent by the International Confederation of Free Trade Unions (ICFTU) on 23 September 1999, transmitted to the Government on 7 October 1999, the Committee notes that the comments refer in general to the distressing situation of thousands of workers in various regions of the country, including over 3,000 female children who are said to be subject to debt servitude and forced to perform prostitution in the State of Rondonia.

3. In its reply to the comments of the ICFTU, the Government has supplied detailed information on the fight against child labour indicating that this is a human rights issue and that its eradication is a priority for the Government. The Government adds that the denunciations of child labour should not be analysed under the provisions of Convention No. 29 because child labour and forced labour occur in totally different contexts. The Government also indicates that the cases of forced labour detected mostly involve adult men without families and that the number of women and young people is negligible and the presence of children virtually inexistent. This is explained by the type of work in which most cases of forced labour are identified, namely deforestation for stock raising and clearing of pastures for the establishment of farming projects, and by the conditions of geographical isolation in which these workers live.

4. The Committee takes due note of the indications supplied by the Government. As regards the distinction to be drawn between the forced labour of children and child labour in general, the Committee earlier indicated that the question arises, with regard to Article 2(1) of the Convention, whether, and if so, under what circumstances a minor can be considered to have offered himself "voluntarily" for work or service, whether or when the consent of the parents is needed or even sufficient in this regard, and what are the sanctions for refusal.

5. It appears to the Committee that the work of children in conditions of debt bondage, including the forced prostitution of minors, fall within the scope of the Convention. While noting with interest the Government's indications that the fight against child labour is one of its priorities, the Committee hopes that the Government will take appropriate measures to investigate fully the allegations of debt bondage of minors forced into prostitution in the State of Rondonia and that it will supply full information on the results of such investigation and any further measures taken.

II. Enforcement of the prohibition of forced labour

6. The Committee notes that the comments sent by the CLAT in October 1998, supplementary to the representation submitted in February 1993, refer to the impunity of those who impose forced labour, delays in judicial procedures, the failure to apply sanctions, the lack of coordination between public bodies and the support of certain political sectors for those responsible for the exaction of forced labour. The CLAT indicates that all these problems demonstrate that the measures adopted by the Government have not been sufficient to solve the problems of applying Conventions Nos. 29 and 105. The Committee notes the detailed information supplied by the Government in reply to the CLAT's comments, in a communication dated 18 February 1999.

7. The Committee recalls that under Article 25 of the Convention the illegal exaction of forced labour shall be punishable as a penal offence and it shall be an obligation on the Government to ensure that the penalties imposed by law are really adequate and are strictly enforced.

(a) Penalties provided in legislation

8. In its previous observation, the Committee expressed its concern at the absence of effective legislation commensurate with the situation for combating forced labour, which would consolidate the various aspects of "degrading labour", including the concept of forced labour. On this matter, the Committee notes that Bill No. 929 of 1995 to which it referred in its previous observations was adopted as Act No. 9777 of 29 December 1998, amending sections 132, 203 and 207 of the Penal Code. This Act supplements section 149 of the Penal Code (reducing someone to a condition analogous to slavery) by:

-- increasing by one-sixth to one-third or more the penalties of imprisonment between three months and one year for anyone who endangers the life or health of another person as a consequence of transporting workers in violation of legal provisions for the purpose of subjecting them to illegal labour practices (section 132 of the Penal Code);

-- a penalty of imprisonment of between one and two years (formerly, the penalty was from one month to one year) for anyone who forces workers to use or consume products sold by a specific establishment to oblige them to contract a debt preventing them from leaving their employment when they so wish (section 203 of the Penal Code);

-- a penalty of imprisonment of from one to three years (formerly, the penalty was from two months to one year) and a fine to anyone who fraudulently recruits workers from outside the locality in which the work will be performed or exacts payment from the worker or fails to provide his return to the place of origin (section 207 of the Penal Code). These penalties are increased if the victims of the violations are minors, elderly people, pregnant women or indigenous people, or if they suffer from any physical or mental disability.

9. The Committee notes that most of the situations of forced labour found in the country have similar common characteristics such as misleading contracts ("enticement"), the impossibility for workers to leave their employment when they so wish because they have contracted debts in the employer's shops and because the workers are forced to pay for their work tools, lack of freedom to leave the employment because it is often in remote places with difficult access, confiscation by the employer of the worker's personal documents (identity and employment cards), ill-treatment inflicted on the worker which sometimes results in death, and long working days of up to 18 hours without water or proper food. The Committee notes with satisfaction that the adoption of Act No. 9777 has solved certain problems of qualification and provided the possibility of punishment with increased penalties for conduct related to forced labour practices.

(b) Strict enforcement of penalties

10. In its previous observation, the Committee noted that few penal sanctions had been imposed on those responsible for the exaction of forced labour. The tripartite Governing Body Committee which examined the representation submitted by the CLAT moreover observed that in the few cases where persons responsible for exacting forced labour had been convicted, these had been intermediaries or small owners or leaseholders, while the owners of large estates or enterprises using the "services" of "third party" enterprises or individual intermediaries for conducting part of their production activities under conditions of forced labour went unpunished. The Committee noted that a penalty of confiscation of the lands of persons who exact forced labour and who are recidivists, may be imposed after declaring these properties to be of public interest for the purpose of agrarian reform. The Committee notes that several estates have been declared to be of public interest. Nevertheless, according to information from Anti-Slavery International supplied by the ICFTU, the penalty of confiscation has been imposed only once, in the case of the "Flor da Mata" estate in the State of Pará, and the owner was compensated for the loss of his land, which largely eliminates the dissuasive nature of the penalty. The Committee also notes that the sentence of two years' imprisonment that was imposed on an employer for violation of section 149 of the Penal Code, to which it referred in its previous observation, was commuted to carrying out community service without deprivation of freedom.

11. On this matter, the Committee recalls that the actions of the labour inspectorate are not sufficient in themselves to combat and suppress cases of forced labour found in a particular country unless they can rely on the support of a strong judicial system capable of imposing severe punishment on violators within a reasonable period of time. The Committee notes the information contained in the Government's report in reply to its previous observation, to the effect that some progress has been made in speeding up the trials of persons accused of subjecting others to forced labour. As an example, the Government refers to the fact that in many cases locating witnesses had been difficult and had delayed the procedures, and that at present in the State of Marabá cases are investigated on the basis of information collected by labour inspectors and federal police agents who take part in inspection operations. The Government also states that when the labour inspectorate identifies forced labour practices, the Ministry of Labour applies the administrative sanctions within its competence and, where it believes that a penal offence has been committed, it transmits the cases to the Federal Attorney-General's office which takes the necessary legal measures. The Committee suggests to the Government that it take into consideration the proposals of the public labour prosecutors who took part in the abovementioned seminars to consider the possibility of adopting specific and consolidated legislation on forced labour establishing both civil and criminal responsibility in such cases and giving the labour prosecutors the necessary competence to bring criminal cases against persons who subject others to forced labour practices. In the Committee's opinion, this could contribute to resolving the problems encountered through the apparent lack of coordination between the various bodies and would facilitate rapid and concerted action, resolving the extreme slowness of the judicial process.

12. The Committee hopes that the Government will supply detailed information in regard to the application in practice of the new legal provisions, the number of persons who have been sentenced or brought before the courts for violation of sections 132, 149, 203 and 207 of the Penal Code and the latter's general impact on combating forced labour.

13. The Committee observes that on various occasions the Government has expressed its intention to eradicate forced labour in the country and, for this purpose, has taken certain measures to improve application of the Convention, particularly the establishment of the Executive Group for the Abolition of Forced Labour (GERTRAF) and of the special labour inspection groups and the adoption of new legislation which covers certain conduct related to the practice of forced labour. Nevertheless, it notes that the failure to apply effective sanctions, the impunity enjoyed by those responsible, the slowness of judicial processes and the lack of coordination among the various governmental bodies in the campaign against those responsible for exacting forced labour hinder the effective eradication in a reasonable time of this scourge. The Committee urges the Government to renew its efforts at all levels to eradicate throughout the country, once and for all, the practice of forced labour. It hopes that the Government will soon report improvement and progress in these areas.