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

The Committee notes the Government’s reply to its earlier comments.

Freedom of career military servicemen to terminate their service. The Committee previously noted that, according to section 31(2) of the Law on the Organization of the National Defence System and Military Service, 1998, the duration of a contract to be signed with officers who have graduated from the Lithuanian Military Academy is until they reach the age for their transfer to the reserve. Section 37 of the same Law stipulates that the Minister of National Defence may allow professional military servicemen to terminate their contract prior to expiration for valid reasons, and a serviceman who wilfully terminates the contract prior to expiration without the approval of the Minister is considered absent without leave and dealt with in accordance with the law.

The Committee referred to the explanations contained in paragraphs 33, 68 and 71-72 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that the provisions excepting compulsory military service from the prohibition of forced labour under the Convention do not apply to career military service and may not be invoked to deprive persons who have voluntarily entered into an engagement of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service. The Committee observed that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention.

The Government indicates in its report of 2002 that usually termination of career military service in violation of section 37 does not incur any penal sanctions, but rather disciplinary punishment for absence without leave, such as dismissal from service. The Government states that, in practice, the application of provisions of section 37 does not raise any problems and, at present, ten to 20 servicemen are dismissed from service per year for important reasons at the permission of the Minister of National Defence.

While noting these indications, the Committee reiterates its hope that the necessary measures will be taken to amend the above provisions of the Law on the Organization of the National Defence System and Military Service so as to allow career servicemen to leave the service in peacetime at their own request, by means of notice of reasonable length, and subject to the conditions which may normally be required to ensure the continuity of the service, in order to bring legislation into conformity with the Convention on this point. Pending the amendment, the Committee requests the Government to continue to provide information on the application of the abovementioned section 37 in practice, indicating the number of applications for resignation accepted and refused, as well as the reasons for refusal.

Article 2(2)(c) of the Convention. The Committee previously noted from the Government’s report that in the "open-type" institutions of correctional labour, convicts are allowed to work for private individuals or enterprises. The Government indicates in its report of 2002 that the administration of the Kybartai penitentiary establishment, which is the only "open-type" establishment of corrective labour in the country, is looking for job vacancies for convicts and concludes contracts with legal and natural persons, and that convicts are informed about such vacancies and employed with their consent. The contracts contain provisions ensuring social protection of convicts and a possibility of supervision by the administration of their conditions of work and remuneration.

The Committee recalls that, under Article 2(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: "… that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations".

This Committee has always made it clear that the 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. 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 has noted, however, that, under section 125(1) of the Code on the Execution of Penal Sentences (Law No. IX-994 of 27 June 2002) the work of convicted prisoners is compulsory. The Government is therefore requested to indicate how the freely given consent of convicts to work for private employers is ensured, without the menace of any penalty in the wide sense of Article 2, paragraph 1, of the Convention, such as loss of privileges or an unfavourable assessment of behaviour taken into account for reduction of sentence. The Committee also requests the Government to supply a copy of the full text of the Code on the Execution of Penal Sentences referred to above.

Article 25. The Committee notes the Government’s statement in its latest report that the new Criminal Code which came into force on 1 January 2003 contains no provision punishing the illegal exaction of forced or compulsory labour, but there are penal provisions punishing other offences (such as the unlawful deprivation of a person’s freedom) which might be applicable. The Committee requests the Government to provide, in its next report, information on any proceedings which may have been instituted under this provision and on any penalties imposed. Please also supply a copy of the new Criminal Code.

The Committee has also noted the Government’s indications in its 2002 report concerning the application of the old Criminal Code provisions punishing trafficking in human beings (section 131-3) and any acts that constitute a breach of labour laws (section 139, which, according to the Government, was also applicable in case of the illegal exaction of forced or compulsory labour). In case the new Criminal Code contains similar provisions, the Committee would appreciate it if the Government would supply information on their application in practice.