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

Further to its earlier observations on the observance of the Convention in Germany, the Committee notes the Government’s reply to the 1998 general observation under the Convention.

Articles 1(1) and 2(1) and (2)(c) of the Convention.
Prisoners working for private enterprises

1. The Committee notes the Government’s indication in its report that there is no penal institution administered as a whole by a commercial or other enterprise in the country, and that such practice would be inadmissible under the national Constitution. The Government reports on two distinct possibilities of prisoners performing work for private enterprises: (a) outside employment in a free employment relationship ("Freigang"); (b) compulsory work in a workshop run by a private enterprise.

A.  Outside employment in a free employment relationship

2. Under section 39(1) of the Act on the execution of sentences:

The prisoner is to be permitted to take up work or further vocational training on the basis of a free employment relationship outside the [penal] institution, if this … serves the objective of transmitting, preserving or furthering capacities for a gainful activity after release and is not contrary to overbearing reasons of the execution [of the sentence].

The Government indicates in its report that prison authorities are obliged to promote free employment relationships; these come into being only at the prisoner’s request; the prisoner has a normal labour contract, comes under the same legal provisions as workers and trainees in freedom, receives wages established by collective agreement, and is covered by the social security systems (pension, health, accident and unemployment insurances) to the same extent as workers in freedom. A contribution for detention costs may be levied, the amount of which depends on the board and lodging provided and currently may not exceed DM660.20.

3. The Committee notes these indications with interest. They set out the very model described by the Committee in paragraph 97 of its 1979 General Survey, of a system of private employment of prisoners that does not fall within the scope of the Convention. However, the conditions of a free employment relationship do not apply to the second type of private use of prison labour that is still being practised under national law, as recalled below.

B.  Compulsory work in a privately run workshop

4. In comments made for a great number of years, the Committee has noted that under the legislation in force, prisoners may be obliged to work in workshops run by private enterprises within state prisons. As the Committee noted in paragraphs 96 and 100 of its general report of last year, the practice followed in this regard in Germany corresponds exactly to the description given in the ILO Memorandum of 1931 of the "special contract system", a system in which the labour of prisoners is hired to private contractors. The fact that prisoners - now as then - remain at all times under the authority and control of the prison administration does not detract from the fact that they are "hired to" a private enterprise - a practice designated in Article 2(2)(c) of the Convention as being incompatible with this basic human rights instrument.

5. In 1978, the Committee noted with interest the adoption of the Act on the Execution of Sentences, of 13 March 1976. Under section 41(3) of the Act, employment in a workshop run by a private enterprise is to depend on the prisoner’s consent, which may be withdrawn later, subject to six weeks’ notice if no other prisoner can fill the vacancy earlier. However, the consent requirement of section 41(3), which was to enter into force on 1 January 1982, was suspended by the "Second Act to improve the budget structure" of 22 December 1981, and has remained a dead letter ever since.

6. Further provisions in the Act on the execution of sentences were to progressively raise the existing conditions of employment of prisoners, including those working in private workshops, by reference to those of a free employment relationship. Thus, sections 191 to 193 of the Act make provision for the extension of sickness and old-age insurance to prisoners, and the Government reported from 1979 onwards on draft legislation to this end. However, although such social insurance coverage had already been effectively extended to prisoners under Prussian legislation referred to in the ILO Memorandum of 1931 on prison labour, no provisions to this effect are now in force in any part of Germany.

7. As regards the wages earned by prisoners working in private workshops, the 1976 Act on the Execution of Sentences recognized all prisoners’ right to wages, but established the initial level at only 5 per cent of the average wage of workers and employees covered by the old-age insurance scheme, with a first increase of this percentage to be envisaged on 31 December 1980.

Over 20 years later, the wage rate still stands at 5 per cent of the average, or less: under section 45, paragraph 2 of the Act "the remuneration may be graduated according to the performance of the prisoner and the kind of work. Less than 75 per cent of the benchmark remuneration [that is, less than 3.75 per cent of the average outside wage] may be paid only if the performance of the prisoner does not meet the minimum requirements".

8. In its previous observation, the Committee noted a decision of the Federal Constitutional Court of 1 July 1998 which found the existing level of prisoners’ remuneration incompatible with the principle of rehabilitation and instructed the legislature to set new rules in conformity with the Constitution by 31 December 2000 at the latest. According to the Government’s report received in October 2000, the Government "intended to submit soon a draft law to parliamentary procedure". No change in the wage level appears to have been legislated by 31 December 2000, nor reported since.

9. The Committee notes with concern that 45 years after ratification of this basic human rights Convention, prisoners working for private enterprises in Germany fall into two categories, with some enjoying the full benefits of a free employment relationship, while the others are hired to those who use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market. The Committee must once again express the hope that the Government will at last take the required measures to bring the legislation and practice in this regard into conformity with Article 1(1), read together with Article 2(1) and 2(c) of the Convention.