Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee has noted the information provided by the Government in reply to its earlier comments. It has noted, in particular, the provisions governing termination of service by career military personnel contained in the Law on the status of military personnel, No. 162-XVI of 22 July 2005, and in the Regulations concerning the performance of military service by soldiers, sergeants and officers of the armed forces approved by Government Decision No. 925 of 21 December 1994. It has also noted the Law on civil protection No. 271-XIII of 9 November 1994, as well as the Government’s explanations concerning the application of its provisions in emergency situations.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons for the purpose of exploitation. The Committee notes with interest comprehensive information provided by the Government in its latest report concerning measures taken to prevent, suppress and punish trafficking in persons for the purpose of exploitation. It notes, in particular, the adoption of the Law to prevent and combat trafficking in human beings, No. 241-XVI of 20 October 2005, the amendment of the Criminal Code provisions concerning trafficking (Law No. 376-XVI of 29 December 2005 amending sections 165 and 206 of the Criminal Code), as well as the Government’s decisions on the approval of the Regulations concerning centres of assistance to victims of human trafficking (No. 1362 of 29 November 2006) and the new National Plan to Prevent and Combat Human Trafficking (No. 903 of 25 August 2005). While noting statistical information concerning the offences of human trafficking provided in the report, the Committee would appreciate it if the Government would provide information on the application in practice of section 165 of the Criminal Code (“Trafficking in human beings”), e.g. supplying sample copies of the relevant court decisions and indicating the penalties imposed on perpetrators.

Article 2(2)(a). Compulsory military service. The Committee previously noted that under article 44(2)(a) of the Constitution of the Republic of Moldova and section 7(5)(a) of the Labour Code, compulsory military service or alternative (civic) service are excluded from the prohibition of forced labour. The Committee notes the respective provisions of the Law on the compulsory military service in the defence forces, No. 1245 of 18 July 2002, and the Law on the alternative service, No. 633 of 9 July 1991. It also notes the Government’s statement in its 2006 report that the legislation in force does not contain express provisions to ensure that services exacted for military purposes are used for purely military ends but this derives from the provisions governing military service. Recalling that, under Article 2(2)(a), compulsory military service may be exempted from the scope of the Convention only if used for purely military ends, the Committee requests the Government to clarify this issue and to indicate the provisions, which, in the Government’s view, provide for guarantees to ensure that services exacted for military purposes are used for purely military ends, thus giving effect to this Article of the Convention.

Article 2(2)(c). Work of prisoners for private individuals, companies or associations. The Committee notes that, under section 253 of the Execution of Sentences Code, every convicted person is under an obligation to work, such work being exacted from them either at enterprises, workshops and auxiliary facilities of the penitentiary system or outside the penitentiary institution, under a contract concluded between the administration of a penitentiary institution and individuals or legal entities concerned. The Committee notes that, under section 253, the obligation of convicted persons to work may include work outside the penitentiaries with private individuals or entities.

The Committee recalls in this connection that Article 2(2)(c) of the Convention exempts from its provisions “any work or service exacted from any person as a consequence of a conviction in a court of law, provided 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”. While this Article strictly prohibits prisoners from being hired to or placed at the disposal of private undertakings, the Committee has pointed out in previous General Surveys, including its most recent General Survey of 2007, paragraphs 59–60, that, provided convicted prisoners voluntarily consent to such work without being subjected to pressure or menace, such work does not fall within the scope of the Convention. At the same time, the Committee has indicated that, bearing in mind the captive circumstances of prisoners, there must be safeguards to ensure their consent is given freely and voluntarily. The Committee in paragraphs 114–122 of its General Survey of 2007 discussed the safeguards which include not only written formal consent but, further, that the most reliable indicator of voluntariness of the labour is if the work is performed under conditions which approximate a free labour relationship. Factors to be taken into account in such circumstances would include, for example, that there was a level of wages and social security provisions which approximate a free labour relationship.

As regards conditions of work of convicted persons, the Committee has noted that, under section 254 of the Execution of Sentences Code, hours of work and rest periods, as well as occupational safety and health are governed by the general labour legislation. By virtue of section 255 of the Code, convicted persons’ remuneration is also governed by the labour legislation; their monthly wages cannot be lower than the legally established minimum wage, and deductions from wages on the basis of execution documents cannot exceed 75 per cent of their monthly earnings. Section 258 of the Code provides for the convicted persons’ old-age pension rights.

While noting that, under the above provisions, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observes that, under the legislation in force, the formal consent of prisoners to work for private enterprises does not appear to be asked for. The Committee therefore hopes that, in the light of the above considerations, the Government will take the necessary measures in order to ensure that, both in the legislation and in practice the work of prisoners for private individuals, companies or associations will be carried out only with their voluntary consent, such consent being free from the menace of any penalty including the loss of rights or privileges. The Committee requests the Government to provide in its next report information on the measures taken or envisaged in this regard.

Article 25. The Committee previously noted the provisions of section 168 of the Criminal Code imposing penal sanctions for the illegal exaction of forced or compulsory labour and sought information on any legal proceedings which have been instituted as a consequence of the application in practice of this section. The Committee has noted the Government’s indication in its 2006 report that two criminal cases were brought to justice under section 168. The Committee would appreciate it if the Government would provide, in its next report, information on the substance of these criminal cases, indicating the penalties imposed and supplying copies of the relevant court decisions.