Demande directe (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee has noted the information supplied by the Government in reply to its previous direct request. It has noted, in particular, the adoption of the Armed Forces Service Act, of 14 March 2000, which contains a specific provision permitting the termination of active service contracts at the request of military servicemen.

Article 2, paragraph 2(c), of the Convention. The Committee previously noted the provisions on compulsory prison labour in the Code of Executive Procedures (RT I, 1997, 43/44, 723), which seem to allow that prisoners be hired to or placed at the disposal of private individuals, companies or associations. The Government indicates in its report that the role of private sector as a supplier of work for prisoners is very small and that practically all prisoners work under supervision of the State, including cases when work is performed for private enterprises, labour relations being established between a prisoner and a prison, and contractual relations being held between an entrepreneur and a prison. It also states that the basis of remuneration is a minimum wage and that the general occupational health and safety requirements are applicable to prisoners, their supervision being performed by the prison. The Government confirms that prisoners under "open" and "half-closed" schemes (sections 143 and 148 of the Code of Executive Procedures) may work in workshops outside the prison premises. According to the report, about 2,800 prisoners in the country are under an obligation to work, half of them being engaged in useful activities. The Government states that refusal to work does not give rise to any penalties, but working is taken into account for early release.

While noting this information, particularly the applicability of minimum wages and occupational health and safety provisions, the Committee recalls that under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations.

As the Committee has previously indicated, these two conditions are cumulative and apply independently, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations (see paragraph 119 of the Committee’s General Report to the 89th Session of the International Labour Conference, 2001). It is only when work or service is performed in conditions approximating to a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention (see e.g. paragraphs 112-125 of its General Report to the 86th Session of the International Labour Conference, 1998).

The Committee therefore requests the Government to describe the organization of prisoners’ work for private persons and entities, both inside and outside prison premises and to supply specimen copies of agreements concluded between prison authorities and private users of prison labour. The Government is also requested to indicate any measures taken to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship; such measures would include the formal consent of the person concerned, as well as - given the absence of alternative access to the free labour market - further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security. As regards the Government’s statement concerning the non-applicability of penalties in case of refusal to work, the Committee draws the Government’s attention to paragraph 21 of its 1979 General Survey on the abolition of forced labour, in which it pointed out that, in the definition of "forced or compulsory labour" given in the Convention, the "penalty" need not be in the form of penal sanctions, but might take the form also of a loss of rights or privileges; it might concern particularly the situation when early release depends on the prisoner’s consent to perform labour.

The Committee hopes that the necessary measures will be taken by the Government to ensure the observance of the Convention in this regard. Please also provide particulars of the plan of action concerning the work of prisoners referred to by the Government in its reply to the general observation of 1998.

Article 25. The Committee previously requested the Government to provide information on any legal proceedings which may have been instituted as a consequence of the illegal exaction of forced or compulsory labour and on any penalties imposed under section 124-3 of the Criminal Code. The Government indicates in its report, referring to the information received from the Ministry of Justice, that no such sentences have been passed. The Committee hopes that the Government will continue to provide information on this subject in its future reports, including copies of relevant court decisions, if and when they are adopted. It also notes from the Government’s report that draft acts on punishments and imprisonment which, according to the Government’s previous indications, contain provisions on penal sanctions for the illegal exaction of forced labour, have passed the first reading in Parliament. The Committee requests the Government to supply copies of the Acts, when adopted.