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

1. Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. Freedom of state employees to terminate their employment. In its previous comments the Committee has referred to section 77 of Act No. 83-112 of 12 December 1983 (issuing the general conditions of service of employees of the State, local communities and public administrative institutions), section 45 of Act No. 67-29 of 14 July 1967 (concerning the organization of the judiciary), and section 27 of Act No. 67-20 of 31 May 1967 (issuing the general conditions of service of members of the armed forces), according to which resignation requests from civilian officials and military personnel come into effect only once they have been accepted by the competent authority. None of these texts specifies a time limit for the authority in question to accept or refuse the resignation. The Prime Minister’s Circular No. 3 of 31 January 1984 regarding the procedure for applying the provisions of the general conditions of service of employees of the State, local municipalities and public administrative institutions indicates, however, that in the absence of a prescribed time limit, the general principle of law according to which four months’ silence on the part of the administration is deemed to indicate implicit refusal shall apply. Furthermore, in the event of specific or tacit refusal, the official may bring a case before the Joint Administrative Committee (which is competent to take a decision on refusals of resignation applications) or make an appeal directly to the administrative tribunal on grounds of exceeding authority.

The Committee requested the Government to supply information on the criteria used by the competent authorities or the appeal bodies as grounds for rejecting a resignation. The information supplied by the Government indicates that:

-  for officials of the State, local municipalities and public administrative institutions, requests for resignation are rejected only when: they are made by a large number of officials with the aim of paralysing the service; they are submitted in order to avoid disciplinary sanctions; or if an official refuses, despite operational requirements, to defer the date of his resignation;

-  with regard to magistrates, the Government stated that requests for resignation are rare and are always accepted provided that they do not take effect during the judicial year, which begins in September, in order to avoid any adverse effects on the functioning of the judicial system, which was noted by the Committee;

-  finally, as regards military personnel, the Government indicated that resignations did not pose a problem in practice; approval by the Minister for National Defence was granted provided that another military personnel of the same rank could fulfil the assignment. The Committee noted that acceptance of the resignation is subject to the sole criterion of replacement without any reference to a maximum period during which the person could be forced to remain in his post while awaiting replacement.

The Committee notes that although appeal procedures are open to officials affected by a tacit or explicit decision refusing their request for resignation and although, according to the information supplied by the Government in its reports, requests for resignation by officials does not seem to raise problems, it is not clear either from the information supplied or from the relevant legislative provisions that officials (civilian and military) can leave their posts within a reasonable time limit. The Committee therefore requests the Government to supply examples of decisions by the joint administrative committees or administrative tribunals - officials bringing cases more frequently before the latter, according to the information supplied by the Government - so that the Committee can assess the manner in which the appeals procedure is conducted and its length as well as, if applicable, the period during which these bodies may request officials (civilian or military) to remain in their posts. The Committee needs this information to ascertain whether officials may leave their posts within reasonable time limits without having to abandon their posts and suffer the consequent prejudice (disciplinary sanctions, etc.).

2. Article 2, paragraph 2(a). Purely military character of work exacted in virtue of compulsory military service laws. For many years, the Committee has drawn the Government’s attention to the need to modify the legislation relating to compulsory national service (Act No. 89-51 of 14 March 1989), in that work, which is not purely of a military character, may be imposed on conscripts undergoing this service. According to Article 2, paragraph 2(a), of the Convention, work or service exacted in virtue of compulsory military service laws is excluded from the definition of forced or compulsory labour provided for by the Convention and is thus excluded from its scope, on the condition that the work is of a purely military character. In this regard, the Committee notes the adoption of a new law on national service (Act No. 2004-1 of 14 January 2004). According to this law, any citizen of 20 years of age must carry out national service of one year’s duration of which the aim is to prepare the citizen to defend his country and to participate in the global development of the country as well as contributing to the dissemination of peace in the world. National service may take the form of active military service for the needs of the national army or of national service outside the armed forces’ units intended to meet the needs of global defence and the imperatives of national solidarity. In the second case, the conscripts are assigned either to armed security forces’ units or to administrations and enterprises, as individual assignments or within the framework of technical cooperation.

In view of the preceding developments, the Committee notes that the new legislation still allows conscripts to be assigned elsewhere than to units of the armed forces or national security forces, and that the conscripts undergoing this compulsory national service may be required to carry out work not of a purely military character, either in individual assignments to administrations or enterprises or in the framework of technical cooperation. The Committee draws the Government’s attention once again to the concept of national service, as set out in Act No. 2004-1 of 14 January 2004 (and as in previous legislation), which is too broad to be covered by the exception provided by the Convention in Article 2, paragraph 2(a). The Committee therefore requests the Government once again to re-examine the situation and take the necessary measures to bring its legislation into conformity with the Convention. Meanwhile, the Committee requests the Government to supply information on the manner in which, in practice, conscripts are assigned to one or other form of national service (particularly in regard to individual assignments in administrations and enterprises and in the framework of technical cooperation). Please indicate in this regard whether the decree set out in section 4(5) of the 2004 Act on National Service laying down the procedures for assignment for carrying out national service outside units of the armed forces has been adopted. If so, please provide a copy. Please also indicate whether Decree No. 1232 of 1 August 1990 concerning procedures for the detachment of national service conscripts remains in force since it was adopted pursuant to section 5 of the 1989 National Service Act which has since been abrogated by the 2004 Act.

3. Article 2, paragraph 2(c). Work of general interest. In its previous comments, the Committee noted that, following the adoption of Act No. 99-89 of 2 August 1999, the Penal Code provides a penalty of work of general interest (new articles 15bis, 15ter and 17, in particular). The court may substitute a period of unpaid work of general interest of not more than 300 hours for a sentence of imprisonment for a period not exceeding six months. The accused must be present in court and may refuse the work of general interest. If he refuses, the court shall pass one of the other sentences provided. Pointing out that the work of general interest is performed in public establishments, local communities, charitable or aid associations, or in associations of benefit to the nation or in environmental protection associations, the Committee asked the Government to specify the conditions and practical arrangements under which the work of general interest is carried out in the various types of association aforementioned, indicating whether they are public or private bodies.

In its latest report, the Government indicates that the information requested by the Committee will be provided in its next report. Once again, the Committee asks the Government to supply this information so that the Committee can assess the effect which a sentence of work of general interest could have on application of the Convention in view of the fact that Article 2, paragraph 2(c), of the Convention, stipulates that any work or service exacted from a person as a consequence of a conviction in a court of law must not be carried out to the benefit of private entities. The Committee therefore requests the Government to specify the manner in which this penalty applies in practice as well as the nature of the associations benefiting from the type of work carried out for them by such persons.

4. Article 2, paragraph (d). Civilian requisitioning. In its previous comments, the Committee drew the Government’s attention to the need to modify the provisions of section 1(3) of the 1989 National Service Act since it provided that citizens who are not subject to national service obligations may be called up individually as civilian conscripts without limiting the power of requisitioning to the cases of force majeure stipulated in the Convention. The Committee notes with interest that the new National Service Act of 2004 does not refer to this power of requisitioning.