Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the Government’s first report. It requests the Government to provide information on the following points.

Article 1 of the Convention. Measures to secure the prohibition and elimination of the worst forms of child labour. The Committee notes the information provided by the Government on the establishment of a poverty eradication policy based on social assistance and economic integration. The social assistance consists of the establishment of permanent assistance measures, such as the National Programme of Assistance to Needy Families (PNAFN), aid for schooling (at the beginning of the school and university year, school and university grants), the provision of health care free of charge (or with reduced fees) in public structures based on the family situation of the person concerned, and social assistance for workers who have ceased to work for economic or technical reasons. The Committee also notes that, in the context of economic integration, a mechanism to provide financial support and advice for micro-enterprises and income-generating activities has been established. The Government adds that a national solidarity fund intervenes in the context of multi-sectoral projects carried out in "grey areas" for the provision of credits and grants for the consolidation of income-generating activities in the agricultural sector and craftwork occupations. Through these programmes, according to the Government, it has been possible to reduce the poverty rate to 4.2 per cent in 2000, compared with 6.2 per cent in 1995 and 7.6 per cent in 1990. The Committee requests the Government to continue providing information on the poverty eradication policy, particularly in so far as it contributes to the elimination of the worst forms of child labour.

The Committee notes that an observatory competent in the fields of research, information, training, documentation and investigation for the protection of the rights of the child was established by Decree No. 2002-327 on 14 February 2002. This observatory is under the responsibility of the Ministry of Youth, Childhood and Sports. Its functions include: (a) monitoring the situation with regard to the protection of the rights of the child and compiling data and information on national and international plans in this area, and analysing and storing such data in databanks established for this purpose; (b) carrying out research and assessment and forward-looking studies in relation to the protection of the rights of the child, preparing summary reports and participating in the publication of periodical and ad hoc reviews in this field; (c) facilitating the communication and dissemination of the culture of the rights of the child between the various ministries and structures concerned by the application of the Code for the Protection of the Rights of the Child through interventions in related fields; (d) assisting the authorities in the preparation of policies and programmes to promote the rights of the child, issuing comments on this subject and proposing measures to improve the situation and protection of the rights of the child; and (e) organizing educational and training seminars, meetings and study days, and related events. The Committee requests the Government to provide information on the research work carried out and the measures adopted by the observatory to secure the prohibition and elimination of the worst forms of child labour.

Article 3. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. The sale and trafficking of children. The Committee notes the Government’s indications that section 19 of the Code for the Protection of the Child prohibits the exploitation of children under 18 years of age in the various forms of organized crime. Under section 20 of the Code, difficult situations jeopardizing the health of the child or her or his physical or moral integrity are considered to be exploitation. However, the Committee notes that there is no provision explicitly prohibiting the sale and trafficking of children under 18 years of age. The Committee recalls that, under Article 3 of the Convention, the sale and trafficking of children constitutes one of the worst forms of child labour and that, under Article 1, immediate and effective measures have to be taken to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee requests the Government to provide information on the measures adopted or envisaged to prohibit the sale and trafficking of young persons under 18 years of age with a view to bringing the national legislation into conformity with the Convention.

2. Serfdom. The Committee notes that section 833 of the Code of Obligations and Contracts provides that any contract which engages the services of an individual throughout her or his life or for a period that is so long that it would bind the said person until death, shall be null and void.

3. Slavery and forced or compulsory labour. The Committee notes the Government’s indications that section 1 of the Decree of 28 May 1890 prohibits slavery. It also notes the abolition, by Act No. 89-23 of 27 February 1989, of the penalty of forced labour, and the abolition, by Act No. 95-9 of 23 January 1995, of the penalty of re-educational work, which was included in the accessory penalties established by the Penal Code. Furthermore, Act No. 99-89 of 2 August 1999 deletes the expression "convicted persons shall be compelled to work", which was contained in section 13 of the Penal Code. The Government adds that forced labour is therefore no longer authorized by the legal texts governing labour relations in both the public and private sectors, nor as a disciplinary sanction. The Committee requests the Government to provide a copy of the Decree of 28 May 1890.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that section 232 of the Penal Code penalizes procuring. Under this section, any person shall be considered to be a procurer who: (1) in any manner whatsoever, aids, protects or knowingly assists in the prostitution of another person or in soliciting with a view to prostitution; (2) in any form whatsoever, shares in the product of the prostitution of another person or receives money from a person habitually engaged in prostitution; (3) knowingly living with a person habitually engaged in prostitution, cannot show sufficient means to provide for her or his own subsistence; (4) procures, abducts, even with her or his consent, a person, even over the age of majority, with a view to prostitution or delivers the said person to prostitution or debauchery; (5) acts as an intermediary, in any manner whatsoever, between persons engaged in prostitution or debauchery and individuals who exploit or remunerate the prostitution or debauchery of others. The Committee also notes that, under section 233 of the Penal Code, an attempt to commit such acts shall be penalized and the penalty shall be augmented where the offence involves a minor (a person aged under 20 years, under section 153 of the Code of the Status of Employees).

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee understands that section 12 of the Decree of 25 April 1940 respecting offences against morality establishes penalties against any person who undertakes the production or distribution or who possesses pornographic films featuring minors. It does not appear to be clear, under the terms of the above provision, that the use of young persons under 18 years of age for the production of pornography is prohibited. The Committee requests the Government to provide information on the measures adopted or envisaged to prohibit the use, procuring or offering of a person under 18 years of age for the production of pornography (including films, photographs and magazines) or for pornographic performances. The Committee also requests the Government to provide a copy of the Decree of 25 April 1940 respecting offences against morality.

Clause (c). Use, procuring or offering of a child for illicit activities. 1. Use, procuring or offering of a child for the production and trafficking of drugs. The Committee notes the Government’s indications that section 2 of Act No. 92-52 of 18 May 1992 respecting drugs prohibits the cultivation, consumption, production, harvesting, storage, possession, purchase, transport, dissemination, cession, offering, delivery, trafficking, distribution, trading, import, export, processing or smuggling of natural narcotic plants. The same section provides that any agricultural, industrial or commercial operations related to drugs shall be formally prohibited, with the exception of those permitted by law (in the fields of medicine or scientific research, for example). Section 5 of Act No. 92-52 of 18 May 1992 prohibits the cultivation, possession, sale, distribution, import or export of drugs with the intention of circulating such substances with the exception of the cases permitted by the law. The Committee also notes that section 11(1) of the Act of 18 May 1992 provides that the penalty shall be augmented where the offence is committed against a young person who has not reached 18 years of age, through the mediation of the latter or at the instigation of her or his ascendants, or of a person exercising authority over her or him, within a school, educational, social, sporting, cultural or rehabilitation establishment.

2. Use, procuring or offering of a child for begging. The Committee notes that, under section 171 of the Penal Code, any person who simulates infirmities or wounds with a view to obtaining alms is committing an offence. It also notes that any person who uses a young person under 18 years of age for begging shall be liable to the severest penalty.

Clause (d). Types of hazardous work. The Committee notes that, under section 8 of the Labour Code, a young person under 18 years of age shall not be admitted to types of work which, by their nature or the circumstances in which they are carried out, are likely to endanger the health, safety or morals of the young person. The Committee also observes that, under the terms of section 1, the Labour Code applies "to industrial, commercial, agricultural establishments and their subsidiaries, of any nature whatsoever, whether public or private, religious or lay, even where their vocation is related to welfare. It shall also apply to the liberal professions, crafts establishments, cooperatives, social enterprises, trade unions, associations and groupings, of any nature whatsoever". It further notes that, under the terms of Book I on the establishment of labour relationships, the Labour Code appears only to apply to contractual labour relationships (section 6). The Committee therefore requests the Government to indicate the measures adopted or envisaged to secure the protection of self-employed workers under 18 years of age in respect of types of work which, by their nature or the circumstances in which they are carried out, are likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of types of hazardous work. The Committee notes that the Order of the Minister of Social Affairs, of 19 January 2000, issued following consultations with employers’ and workers’ organizations, determines the types of work in which it is prohibited to employ young persons under 18 years of age. These types of work include: underground work in mines and quarries; work carried out in sewers, in metal foundries and metallurgy, and in tanneries; work involving the production, transformation and transmission of electricity and energy in any form; work carried out on airport runways; work involving the collection and processing of rubbish; the manufacture and transport of explosives; the manufacture and handling of pesticides; work carried out in tanks or other recipients containing inflammable or toxic gases or vapours; the manufacture and sale of alcoholic drinks; and work in nightclubs, cabarets and bars. It also notes that work requiring the handling of substances referred to in the detailed list of occupational diseases established by Act No. 94-28 of 21 February 1994 are prohibited for persons under 18 years of age. The Committee further notes that section 2 of the Order of the Minister of Social Affairs of 5 May 1988 establishes the maximum weights of loads which may be transported by young workers under 18 years of age. It observes that, under the terms of section 13 of Decree No. 86-433 of 28 March 1966 respecting protection against ionizing radiation, no worker under 18 years of age shall be assigned to a job involving exposure to ionizing radiation.

Article 4, paragraph 2. Identification of where types of hazardous work exist. The Committee notes that the Government’s report does not provide any information on this subject. The Committee recalls that Article 4, paragraph 2, of the Convention provides that the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where types of hazardous work exist. The Committee requests the Government to indicate the measures adopted or envisaged to identify, after consultation with the organizations of employers and workers concerned, where the types of hazardous work so determined exist.

Article 4, paragraph 3. Periodical examination and revision of the list of types of hazardous work so determined. The Committee notes that the Government has not provided any information on the periodical examination and revision as necessary, in consultation with the organizations of employers and workers concerned, of the list of hazardous types of work determined in accordance with Article 4, paragraph 1, of the Convention. The Committee requests the Government to indicate the measures adopted or envisaged to examine and revise periodically the list of types of hazardous work.

Article 5. Monitoring mechanisms. 1. Labour inspection. The Committee notes that, under section 170 of the Labour Code, labour inspectors are responsible for enforcing the application of the provisions of laws, regulations and agreements organizing labour relations or deriving there from. The Committee observes that labour inspectors (section 174 of the Labour Code) may carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the provisions of laws or regulations are being effectively observed, and in particular interrogate the employer or the staff of the enterprise on any matters concerning the application of the provisions of laws, regulations or agreements. In so doing, they may enter freely and without previous notice by day or night any workplace liable to inspection. They may also require the production of any books, registers or documents the keeping of which is prescribed by the labour legislation, and may remove for the purposes of analysis samples of materials and substances used or handled, subject to the employer or his or her representative being notified. It further notes that, under section 181 of the Labour Code, the general directorate of the labour inspection shall prepare at the end of each year a general report containing information on the activities of the services and providing an overview of the observations made by labour inspectors. This report is published by the Minister of Social Affairs within six months of the end of the year in question. The Committee requests the Government to provide information on the inspections carried out by the labour inspectorate to identify any infringements of the national provisions giving effect to the Convention. It also requests the Government to provide copies of reports or other documents produced by the labour inspectorate.

2. Medical labour inspectors. The Committee notes the Government’s indications that, under sections 289 and 290 of the Labour Code, medical labour inspectors, in collaboration with labour inspectors, shall enforce the application of the legislation on occupational safety and health. They are also responsible for compiling statistical data with a view to improving the health and safety protection of workers. The Committee requests the Government to indicate whether medical labour inspectors have compiled statistical data on the number of employment accidents or workers who are the victims of occupational diseases in types of work which, by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of young persons under 18 years of age and, if so, to provide copies.

Article 6, paragraph 1. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s indications that the National Children’s Council, established by Decree No. 95-407 of 6 March 1995, is entrusted with assisting the minister responsible for children in the formulation of the Government’s general policy on children. The Committee however notes that section 8 of Decree No. 2002-547, of 12 March 2002, repeals Decree No. 95-407, of 6 March 1995, and replaces the National Children’s Council by the Higher Children’s Council. This latter Council is responsible, among other matters, for monitoring the situation of children in the country, examining and issuing its opinion on national plans relating to children and monitoring their implementation, taking into account national priorities (section 2). The Committee requests the Government to provide information on any programme of action formulated and implemented with a view to eliminating the worst forms of child labour, and on the assessment reports prepared by the Higher Children’s Council.

Article 6, paragraph 2. Consultation with employers’ and workers’ organizations. The Committee notes that the Higher Children’s Council is chaired by the Prime Minister and that its members include a representative of the Tunisian Association for the Rights of the Child, a representative of the National Tunisian Children’s Organization and a representative of the National Tunisian Women’s Union (section 3 of Decree No. 2002-574). The chair of the Council may also call on any person or organization whose presence is deemed useful to assist in its work (section 3 in fine). However, the Committee notes that it is not clearly established that the design and implementation of programmes of action which are adopted to eliminate the worst forms of child labour require the consultation of organizations of employers and workers. The Committee therefore requests the Government to indicate whether employers’ and workers’ organizations are consulted prior to the adoption of such programmes of action.

Article 7, paragraph 1. Penalties. The Committee notes that, under section 232 of the Penal Code, procuring is penalized by a sentence of imprisonment of between one and three years and a fine of between 100 and 500 dinars (between US$80 and US$400). Under section 233 of the Penal Code, the penalty is augmented where the offence is committed against a minor (three to five years of imprisonment and a fine of between 500 and 1,000 dinars). The Committee notes that under section 5 of Act No. 92-52 of 18 May 1992 respecting drugs, any person who cultivates, harvests, produces, stores, possesses, obtains, offers, transports, deals in, purchases, cedes, delivers, distributes, extracts or produces drugs for trafficking, except in the cases permitted by the law, shall be liable to a sentence of imprisonment of between six and ten years and a fine of between 5,000 and 10,000 dinars (around US$4,000 to US$8,000). The act of smuggling, importing or exporting drugs with the intention of their distribution or trafficking is also penalized by a sentence of imprisonment of from ten to 20 years and a fine of between 20,000 and 100,000 dinars (around US$16,000 to US$80,153). Under section 11(1) of the Act of 18 May 1992, the maximum penalty shall be imposed upon any person who has committed any of the offences set forth in section 5 above where the offence is committed against a young person under 18 years of age, through the intervention of the latter or at the instigation of her or his ascendants or of a person exercising authority over her or him, within a school, educational, social, sporting, cultural or rehabilitation establishment. The Committee further observes that any person who engages a young person under 18 years of age in begging shall be liable to one year of imprisonment (section 171 of the Penal Code). The Committee also notes that infringements of the provisions of the Order of the Minister of Social Affairs, of 19 January 2000, establishing the types of work in which the engagement of young persons is prohibited, shall be liable to a fine of between 24 and 60 dinars (approximately US$20 to US$50) (section 2 of the Order, in conjunction with section 234 of the Labour Code). The fine shall be imposed in respect of each worker employed under conditions which are contrary to the provisions of the Order (section 236 of the Labour Code).

Article 7, paragraph 2. Effective and time-bound measures. (a) Prevent the engagement of children in the worst forms of child labour. The Committee notes that section 2 of the Code for the Protection of the Child guarantees children the right to benefit from social, educational and health prevention measures and other measures and procedures intended to protect them from any form of violence, prejudice, physical, psychological or sexual abuse, abandonment or negligence which would give rise to ill treatment or exploitation. Section 30 of the Code provides that the child protection delegate is entrusted with the mission of preventive action in all cases in which it is found that the health of the child or her or his physical or moral integrity are under threat or at risk due to the environment in which she or he lives, or the activities or acts carried out, or by reason of the various types of ill treatment suffered, particularly in the situations of difficulty established in section 20 of the Code.

The Committee observes that, under the terms of section 20 of the Code for the Protection of the Child, the sexual exploitation of a child (that is, acts of prostitution, whether paid or free of charge, direct or indirect, section 25), the exploitation of a child in organized crime, the exposure of a child to begging and her or his economic exploitation, constitute situations of difficulty jeopardizing the health of the child and her or his physical or moral integrity, and require the intervention of the child protection delegate. The Committee notes the Government’s indications that there are currently 24 child protection delegates. Under the terms of section 35, the delegate may convene a child and her or his parents to hear their statements and replies to the reported facts; they are also empowered to undertake investigations and take adequate measures for the good of the child. The Committee requests the Government to provide information on the measures taken by the child protection delegate to prevent the worst forms of child labour.

The Committee notes that education is an absolute national priority and that schooling is compulsory from 6 to 16 years of age (section 1(1) of Framework Act No. 2002-80, of 23 July 2002, respecting education and schooling). Section 4 of this Act provides that the State shall guarantee the right to free schooling in public schools for all those who are of school age. The State provides assistance to pupils belonging to families with low incomes. The Committee also notes that, according to the Government, the school attendance rate for children aged 6 was 99 per cent in 2000. However, the Committee notes that the Committee on the Rights of the Child, in its concluding observations (CRC/C/15/Add.181, 13 June 2002, paragraph 39), expressed concern "at the repetition and drop-out rates, which, while decreasing, continue to pose a significant challenge to the educational system" and expressed concern "at regional disparities in education as well as at the disparity in the illiteracy rate between urban and rural areas as well as gender disparities." Its recommendations to the Government included "to ensure that all children enjoy the right to education" (CRC/C/15/Add.181, op. cit., paragraph 40). Considering that education contributes to preventing children from being engaged in the worst forms of child labour, the Committee requests the Government to provide information on the measures taken to ensure access to free basic education for children throughout the national territory.

Clause (b). Assistance for the removal of children from the worst forms of child labour. The Committee notes that the child protection delegate may take various measures to remove children from situations of difficulty and provide for their rehabilitation and social integration. For example, it notes that, under section 36 of the Code for the Protection of the Child, the delegate benefits from the status of a criminal investigation officer in the context of the application of the provisions of the Code. In cases of vagrancy, with emergency judicial authorization, the delegate may take urgent measures to place the child in a rehabilitation establishment, shelter, hospital, family, or appropriate social or educational institution or establishment (section 45 of the Code). In cases of imminent danger, the delegate may decide to remove the child from the place of danger using, where necessary, public security forces and placing the child in a safe place under her or his own responsibility, while respecting the inviolability of places of residence (section 46 of the Code). Under the terms of section 46 of the Code, an imminent danger is considered to be any act or omission which threatens the life of the child or her or his physical or moral integrity in a manner which cannot be remedied over time. The Committee requests the Government to provide information on the application in practice of section 46 of the Code for the Protection of the Child respecting the action of the child protection delegate in the event of imminent danger, particularly in relation to the worst forms of child labour.

The Committee notes that the Code for the Protection of the Child has established the duty of notification so as to enable delegates to detect cases in which children are in situations of difficulty. This duty of notification means that all persons are under the obligation to notify the delegate of anything that is such as to constitute a threat to the health of the child, or to her or his physical or moral integrity (section 31). The Committee observes that, according to the Government’s report to the Committee on the Rights of the Child (CRC/TUN 2, written reply dated 20 April 2002, page 15), there were 3,140 notifications in 2000 and 4,179 in 2001. The Committee requests the Government to indicate the number of these notifications which concerned children engaged in the worst forms of child labour.

Clause (d). Children at special risk. The Committee notes that section 6 of the Commercial Code provides that no young person, of either sex, who has reached the age of 18 years may engage in trade or be considered to have attained majority with regard to the commitments made for commercial purposes if she or he has not obtained full emancipation. Sections 158 and 159 of the Code of the Status of Employees provides that a judge may grant a young person over 15 years of age limited or absolute emancipation, and may withdraw it where necessary. The Committee also notes that, under section 2 of the Commercial Code, any person is a trader who, in a professional capacity, undertakes, among other activities: the extraction of raw materials; the production and transformation of manufactured products; the operations of storage or the management of general stores; the land, maritime and air transport of goods and persons; the exploitation of business agencies; the exploitation of enterprises producing public performances; the operation of publicity, publishing, communication and news transmission enterprises. The Committee requests the Government to indicate the measures adopted or envisaged to ensure the protection of traders under 18 years of age against types of work which, by their nature and the circumstances in which they are carried out, are likely to harm their health, safety or morals.

Clause (e). Special situation of girls. The Committee notes that the Government’s report does not contain information on this subject. The Committee requests the Government to provide information on the measures adopted or envisaged to take account of the special situation of girls in the context of the elimination of the worst forms of child labour, in accordance with Article 7, paragraph 2(e), of the Convention.

Article 7, paragraph 3. Designation of the authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes, according to the Government’s indications, that the competent authorities responsible for the implementation of the provisions giving effect to the Convention are the Ministry of Social Affairs and Solidarity, the Ministry of Women’s Affairs, Family and Children, the Ministry of Justice and Human Rights, the Ministry of Employment and the Ministry of Education and Training.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes that the Government has not provided any information on this subject in its report. However, it notes that since 1961 Tunisia has been a member of Interpol, which contributes to facilitating cooperation with countries in the region, particularly through the exchange of information to enable them to combat the trafficking of children more effectively. It further notes that Tunisia is part of the Middle East and North Africa subregion. It has been a party to the Convention on the Rights of the Child since 1991 and signed its Optional Protocols (on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography) in 2002. It also ratified in 2003 the United Nations Convention against Transnational Organized Crime (the Palermo Convention) and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. The Committee further notes that section 235 of the Penal Code provides that the penalties established in the case of procuring shall be imposed even where the various acts which constitute the offences were committed in other countries. The Committee requests the Government to provide information on the cooperation measures with third countries to combat child prostitution and the results achieved.

Part V of the report form. The Committee notes that the officials responsible for labour inspection have the function, in addition to the supervision for which they are responsible, of compiling statistics of all types concerning conditions of work and employment in the economic sectors liable to their inspection (section 179 of the Labour Code). The Committee also notes that the Committee on the Rights of the Child, in its concluding observations in June 2002 (CRC/C/15/Add.181, paragraphs 41, 43 and 44), expressed concern at the lack of specific data concerning child labour, and particularly the sexual exploitation of children. The Committee of Experts notes that the Committee on the Rights of the Child therefore recommended the Government to undertake studies with a view to determining the extent of the sexual exploitation of children, including prostitution and pornography, and to implement appropriate policies and programmes for its prevention and for the rehabilitation and reintegration of child victims. The Committee requests the Government to provide copies of the statistics compiled by the labour inspectorate or any other national body, as well as information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements, investigations, prosecutions and convictions reported and the penal sanctions applied.