Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will include full information on the following matters raised in its previous direct request:

1. The Committee again requests the Government to supply, with its next report, copies of the following texts: Code on Administrative Offences, Code on Execution of Penal Sentences, Law on Public Service, Law on the Organization and Conducting of Assemblies and Meetings, Law on the Press and Other Media, as well as any provisions governing labour discipline in merchant shipping.

2. Article 1(a) of the Convention. The Committee previously noted the provisions of article 32 of the Constitution concerning freedom of opinion and expression, according to which "the law shall forbid and prosecute all actions aimed at denying and slandering the State or the people", as well as "incitement to discrimination, territorial separatism, public violence or other actions threatening constitutional order", and requested the Government to provide information on any penal provisions punishing such actions and on their application in practice.

The Committee notes that, under section 285(1) of the new Criminal Code, "organization or leadership of large-scale disturbances" is punishable with deprivation of freedom for a term of up to ten years (which involves compulsory prison labour). It also notes that section 346 of the Criminal Code provides for sanctions of imprisonment for a term of up to three years for "inflaming of the national, racial or religious enmity".

The Committee points out, referring to the explanations contained in paragraphs 133-140 of its General Survey of 1979 on the abolition of forced labour, that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence or incite to the use of violence, armed resistance or an uprising. But sanctions involving compulsory labour are incompatible with the Convention where they enforce a prohibition of the peaceful expression of non-violent views that are critical of government policy and the established political system. Since political opinions and views are often expressed not only through different communications media, but also at various kinds of meetings and manifestations, the prohibition of certain kinds of meetings by way of sanctioning "large-scale disturbances" or "violation of public order" may give rise to political coercion falling within the scope of the Convention.

The Committee notes that the above provisions of the Criminal Code provide for penal sanctions involving compulsory labour in circumstances defined in terms which are wide enough to give rise to questions about their application in practice. It therefore requests the Government to supply, with its next report, copies of the court decisions which could define or illustrate the scope of these provisions, so as to enable the Committee to ascertain whether they are applied in a manner compatible with the Convention.

3. Article 1(c). The Committee notes that, under section 329 of the new Criminal Code, the non-performance or improper performance by an official of his duties as the result of a negligent attitude, causing substantial harm to legitimate rights and interests of persons or organizations, or to public interests, is punishable by deprivation of freedom for a term of up to three years (which involves compulsory prison labour). In order to enable the Committee to ascertain whether this provision is not used as a means of labour discipline within the meaning of the Convention, please supply information on its application in practice, including copies of any court decisions defining or illustrating its scope.

4. Article 1(d). The Committee notes that section 358(1) of the new Criminal Code provides for sanctions of imprisonment (involving compulsory labour) for the organization of or active participation in group actions breaking violently public order and resulting in disturbances of operation of transport or work of enterprises, institutions or organizations. Similarly, under section 285(1) referred to in paragraph 2 above, "organization or leadership of large scale disturbances resulting in the obstruction of normal operation of transport or work of enterprises, institutions or organizations" is punishable with deprivation of freedom for a term of up to ten years.

Referring to its direct request addressed to the Government under Convention No. 87, likewise ratified by Moldova, the Committee draws the Government’s attention to the explanations in paragraphs 123-132 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that it is not incompatible with the Convention to impose penalties (even involving an obligation to perform labour) for participation in strikes in essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), or for participation in strikes in breach of freely concluded collective agreements, or in the situations of force majeure. However, the Committee notes that section 369 of the new Labour Code imposes restrictions on the right to strike (enforceable with penal sanctions in accordance with section 370) in a wider range of circumstances, particularly by defining in an unduly extensive manner categories of workers prohibited from participating in strikes, which is not in conformity with the Convention.

The Committee therefore hopes that measures will be taken to ensure that the above provisions imposing restrictions on the right to strike enforceable with sanctions involving compulsory prison labour are limited in scope to essential services in the strict sense of the term, or to the cases of force majeure, or to the situations where the parties concerned agreed to refer the dispute to arbitration, and that no sanctions involving compulsory labour can be imposed for participation in peaceful strikes in other services. It requests the Government to provide, in its next report, information on the progress made in this regard.