Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. In its earlier comments, the Committee noted that violation of provisions governing the procedure of organization and holding of assemblies, meetings, street marches, demonstrations and picketing, established by the Law of 30 December 1997, is punishable with sanctions which may involve compulsory labour, pursuant to section 167-1 of the Code on Administrative Offences and section 342 of the Criminal Code. Section 167-1 of the Code on Administrative Offences makes such violation punishable with a fine or administrative arrest for a term of up to 15 days (which involves an obligation to perform labour, in accordance with section 306 of the same Code). Section 342 of the Criminal Code provides for sanctions of imprisonment or limitation of freedom for the “organization of group actions violating public order” (both sanctions involve compulsory labour, in accordance with sections 50(1) and 98(1) of the Execution of Penal Sentences Code, 2001).

The Committee has always made it clear that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engaged in preparatory acts aimed at violence but, if sanctions involving compulsory labour enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system, such sanctions fall within the scope of the Convention. Since opinions and views ideologically opposed to the established system are often expressed in various kinds of meetings, certain restrictions and prohibitions affecting meetings and gatherings may give rise to political coercion involving sanctions contrary to the Convention (see also the explanations contained in paragraphs 152 and 162 of the Committee’s General Survey of 2007 on the eradication of forced labour).

The Committee has noted the Government’s indications concerning the application of the above provisions in practice. It has noted, in particular, that, in 2005, three persons were punished with the sanction of limitation of freedom under section 342 and 34 persons were punished with the administrative arrest under section 167-1 for the violations referred to above.

The Committee reiterates its hope that measures will be taken to amend the provisions referred to above in order to ensure, both in law and in practice, that no penalties involving compulsory labour may be imposed for the expression of political views opposed to the established system, for example, by restricting the scope of these provisions to the situations connected with the use of violence or incitement to violence, or by repealing sanctions involving the obligation to work. Pending the amendment, the Committee requests the Government to continue to provide information on the application in practice of the abovementioned section 167-1 of the Code on Administrative Offences and section 342 of the Criminal Code, including sample copies of the court decisions and indicating the penalties imposed.

Article 1(c). Penal sanctions involving compulsory labour for breaches of labour discipline in the public service. In its earlier comments, the Committee referred to section 428(1) of the Criminal Code, under which the non-performance or improper performance by a public official of his duties as the result of a negligent attitude, causing particularly large‑scale damage or substantial harm to legitimate rights and interests of persons or to state interests, is punishable by imprisonment or limitation of freedom (which involves compulsory labour, as explained above).

The Committee has taken due note of the Government’s view expressed in the report that section 428(1) is not in contradiction with the Convention, since the latter does not apply to sanctions imposed for the protection of a general public interest. The Committee points out in this regard, referring also to the explanations in paragraphs 175–178 of its General Survey of 2007 on the eradication of forced labour, that only sanctions relating to breaches of labour discipline which are committed in the exercise of functions which are essential to safety or in circumstances where life or health are in danger, are not covered by the Convention.

The Government also reiterates in its report that there is no provision for compulsory enlistment to public or corrective works under section 428 of the Criminal Code. However, as the Committee has noted previously, section 98(1) of the Execution of Penal Sentences Code, 2001, provides for the obligation of prisoners to work at the enterprises determined by the administration of correctional institutions, the refusal to work being punishable with sanctions. Section 50(1) provides for a similar obligation with regard to convicted persons serving a term of limitation of freedom.

The Committee has noted the Government’s indications concerning the application of section 428(1) in practice. It has noted, in particular, that one person was punished with the sanction of limitation of freedom and three persons were punished with imprisonment under this section in 2005.

The Committee therefore reiterates its hope that measures will be taken to amend section 428(1), for example, by restricting its scope to acts which are committed in the exercise of functions which are essential to safety or in circumstances where life or health is in danger (as is stipulated in paragraph (2) of section 428), or by repealing sanctions involving the obligation to work, in order to bring legislation into conformity with the Convention on this point. Pending the adoption of such measures, the Committee requests the Government to continue to supply information on the application of section 428(1) in practice, including sample copies of the relevant court decisions defining or illustrating its scope. In particular, please clarify the notion of a “particularly large scale damage or substantial harm” to legitimate rights and interests of persons or to state interests.

Article 1(d). Sanctions involving compulsory labour as a punishment for participation in strikes. In its earlier comments, the Committee referred to section 397 of the Labour Code, under which participants in a strike deemed unlawful by a court of law may be held liable pursuant to disciplinary and other procedures prescribed by law. The Committee previously noted the Government’s indication in its earlier report that section 342 of the Criminal Code, which provides for sanctions of imprisonment or limitation of freedom (involving compulsory labour, as explained above) for the organization of group actions violating public order and resulting in disturbances of operation of transport or work of enterprises, institutions or organizations, as well as section 310(1) of the Criminal Code, which provides for similar sanctions for the intentional blocking of transport communications, are applicable to participants in unlawful strikes. The Committee recalled that, in order to be compatible with the Convention, restrictions on the right to strike enforceable with sanctions involving compulsory labour must be limited in scope to the situations of force majeure or to other circumstances in which the life, personal safety or health of the whole or part of the population might be endangered (see also the explanations contained in paragraphs 182–189 of the Committee’s General Survey of 2007 on the eradication of forced labour).

The Committee previously noted the Government’s statement in its earlier report that, under the legislation, there is no penal liability for participation in strikes and that penal sanctions can only be applied to a worker who has committed a crime in the course of a strike. The Committee again requests the Government to supply information on the application of sections 310 and 342 in practice, including copies of the relevant court decisions defining or illustrating their scope and indicating the penalties imposed.

Referring also to its comments addressed to the Government under Convention No. 87, particularly as regards the need to repeal certain restrictions relevant to industrial action, the Committee again requests the Government to indicate the measures taken or envisaged to ensure, both in law and in practice, that sanctions involving an obligation to work cannot be imposed for participation in strikes.