Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee has noted the information provided by the Government in reply to its earlier comments.

Article 2(2)(c) of the Convention. 1. The Committee previously noted that the law enforcement authorities may conclude agreements concerning the employment of prisoners not only with public bodies or institutions, but also with private companies (section 101(3) of Order No. 6/1996 (VII 12) of the Ministry of Justice on the implementation of provisions concerning prison sentences and detention). Law-Decree No. 11 of 1979 on the execution of prison sentences provides for an obligation of convicts to work (section 33(1)(d)). The Committee also noted that the employment-related rights of prisoners are governed by the general provisions of labour law (subject to certain deviations), but their minimum remuneration corresponds only to one-third of the general minimum wage (section 124(2) of the above Order No. 6/1996 (VII 12)) and they do not acquire pension rights under the existing legislation.

While noting the Government’s statement in the report that prisoners are in a legal relationship with a penitentiary institution and are not directly employed by a third party, and perform labour under the supervision and control of the law enforcement bodies, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that prisoners are hired to or placed at the disposal of private individuals, companies or associations.

As the Committee repeatedly pointed out, it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc. (paragraphs 97-101 of the Committee’s General Survey of 1979 on the abolition of forced labour; paragraphs 128-143 of the Committee’s General Report to the 89th Session of the International Labour Conference, 2001).

The Committee therefore hopes that measures will be taken, both in law and in practice, to ensure that any work or service by prisoners for private persons is performed in conditions approximating a free employment relationship, including the formal consent of the prisoners 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, as referred to above. Pending the adoption of such measures, the Government is again requested to supply specimen copies of agreements concluded between prison authorities and private users of prison labour, as well as any other information concerning the work of prisoners for private employers.

2. In its earlier comments the Committee noted that Act XVII of 1993 on the Amendment of Criminal Laws introduced into the Penal Code provisions concerning "public utility labour". It noted that, according to the new text of section 49 of the Penal Code, public utility labour as a penal sanction is performed, without deprivation of a person’s freedom, at least one day per week, without remuneration, for a period of up to 100 days. The public utility labour may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations.

The Committee previously noted the Government’s indications that the work to be performed as public utility labour must be of public interest and that the employer (which may be either a public institution or a business organization) shall observe the safety provisions and ensure the same working conditions as those enjoyed by workers employed on a basis of a contract; however, public utility labour is to be performed without any remuneration.

Noting that the Government’s latest report contains no information on this subject, and referring to the above considerations concerning the prohibition contained in Article 2(2)(c) the Committee again requests the Government to indicate measures taken or envisaged to guarantee the consent of convicts concerned to work for a private employer, such consent being free from the menace of any penalty, as well as the conditions of employment, including wages, comparable to those offered to free workers.

The Committee reiterates its hope that the necessary measures will be taken by the Government to ensure the observance of the Convention in this regard.