Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

1. Articles 1 (paragraph 1), and 2 (paragraph 1), of the Convention. Freedom of seafarers to leave their employment. In its previous comments the Committee noted that section 67 of the standard conditions of service of seafarers (Decree No. 88-171 of 13 September 1988) provides that the employment relationship may on no account be terminated outside the national territory. It noted that section 65 of the conditions of service provided for a six-month period of notice for officers and three months’ notice for other ranks. The Committee notes that Decree No. 88-171 of 13 September 1988 was repealed by Executive Decree No. 05-102 of 26 March 2005 establishing the conditions of employment of seafarers in merchant shipping and fisheries. It notes with regret that section 56 of Executive Decree No. 05-102 reproduces the provisions of section 67 of Decree No. 88-171. Moreover, it notes that section 53 provides that any seafarer wishing to terminate an employment relationship must inform the shipowner in writing, and the latter has 15 days following receipt of the letter to accept or refuse the resignation request. If there is no reply from the shipowner during the 15‑day period, the resignation request is deemed to have been accepted (section 55(3)).

The Committee notes the Government’s statement, in its supplementary reports received in November 2008 and January 2009, that the provision establishing that the employment relationship may on no account be terminated outside the national territory has been maintained with a view to protecting both the interests of seafarers, by removing the possibility of arbitrary dismissal, and those of the shipowner, by preventing the latter from having to bear undue costs connected with repatriation and replacement of the seafarer. However, the Government explains that, if the contract expires during a stopover in a foreign port, the seafarer retains the possibility of leaving the vessel with the shipowner then being responsible for all necessary measures for the seafarer’s repatriation.

While noting these explanations, the Committee is bound to make the same comment as it did with regard to the former provisions, namely that, even though section 56 of Executive Decree No. 05-102 protects seafarers against dismissal which could result in being put off the vessel outside the national territory, this provision does not enable a seafarer to leave his employment after expiry of the notice period if he is not on national territory at that time. The Committee emphasizes once again that the provision prohibiting seafarers from terminating their employment, even after the completion of the statutory period of notice, while they are outside the national territory has the effect of turning a contractual relationship voluntarily entered into by the parties into service imposed by law for an indefinite period. The Committee therefore requests the Government to repeal or amend section 56 of Executive Decree No. 05-102 of 26 March 2005. Moreover, it asks the Government to indicate the nature and content of the commitments undertaken by officers at the time of recruitment, given that section 53(2) of Executive Decree No. 05-102 states that officers can only leave their employment after fulfilling all the commitments which they undertook at the time of their recruitment.

2. Article 2, paragraph 2, subparagraph (a). Defence forces. Military work. In its previous comments the Committee noted the provisions of Act No. 87-16 of 1 August 1987 establishing and determining the functions and structure of the people’s defence. The Committee noted that, under sections 1 and 3 of the Act, citizens between 18 and 60 years of age are subject to the obligations of the people’s defence, set up within the framework of the national defence; under section 8, the conditions for the deployment of the people’s defence forces in peace time are set out in regulations; and, by virtue of section 9, with respect to economic defence, the people’s defence forces participate in the protection of the units of production and the strengthening of the economic capacity of the country. The application of section 9 of the Act is determined by means of regulations.

The Committee noted the Government’s repeated indications that the regulations concerning the application of section 9 of Act No. 87-16 had not yet been adopted. It also requested information on the application of section 9 in practice. It noted the information sent by the Government to the effect that Act No. 87-16 had become obsolete since it had never been applied in practice since its enactment.

Noting that the Government has once again omitted to supply the requested information, the Committee again requests the Government to take the necessary steps to bring its legislation into conformity with practice and consequently with the present provisions of the Convention. It trusts that the Government will be in a position to provide information on this point in its next report.

3. Article 2, paragraph 2, subparagraph (d). Detention and work imposed under martial law or a state of emergency. In its previous comments the Committee referred to certain provisions of the national legislation concerning martial law on the one hand, and a state of emergency, on the other.

As regards the provisions of martial law, the Committee referred to Executive Decree No. 91-201 of 25 June 1991 determining the limits and conditions of referral to a security centre pursuant to section 4 of Presidential Decree No. 91‑196 of 4 June 1991 proclaiming martial law. Under the abovementioned Executive Decree, adults whose activities endangered public order and safety or the normal operation of public services through their refusal to comply with a written requisition order issued by the authority exercising police powers and the power to maintain public order, thereby seriously affecting the functioning of the national economy, or by opposing the execution of a requisition order issued by reason of the emergency and the need for services to be provided by a public or private service, could be detained in a security centre for a period of 45 days, which could be renewed only once. The Committee noted the Government’s information to the effect that Executive Decree No. 91-201 was now ipso jure null and void, martial law having been lifted by Presidential Decree No. 91-336 of 22 September 1991.

As regards the legislation relating to the state of emergency, the Committee previously noted that security centres were established under Presidential Decree No. 92-44 of 9 February 1992 declaring a state of emergency, and that detention in a security centre was imposed under section 3 of Executive Decree No. 92-75 of 20 February 1992 establishing the conditions for the implementation of certain provisions of Presidential Decree No. 92-44 of 9 February 1992. According to the Government, all the security centres which had been opened had since been closed.

While noting the Government’s statement in its supplementary report received in January 2009 that the state of emergency would be lifted when the conditions which had led to its introduction no longer existed, the Committee requests the Government to supply information on any changes that have occurred in practice with regard to measures concerning detention in security centres.

The Committee is making additional comments in a direct request concerning the application of the Abolition of Forced Labour Convention, 1957 (No. 105), which refer to other provisions of the legislation relating to the state of emergency and which are contrary to the latter Convention.

4. Article 2, paragraph 2, subparagraph (c). Prison labour. Hiring out of prison labour to private enterprises. In its previous comments the Committee noted the provisions of Act No. 05-04 of 6 February 2005 issuing the Code on the organization of prisons and the social rehabilitation of prisoners, particularly those of section 100(2), permitting the hiring out of prison labour to private enterprises involved in the performance of work of public interest. The Committee noted that no provision of the Prison Code stated that there was any need to obtain the consent of the prisoners concerned to work for private persons.

The Committee notes the information sent by the Government in its reports received in 2008 and 2009, in reply to its previous comments on this point. It notes that work done by a prisoner can only be on a voluntary basis, in the context of training and learning, and primarily at the request of the prisoner himself following the submission of his request to the Committee for the Enforcement of Sentences and with the agreement of the latter. The prisoner’s file contains either the prisoner’s request to work under the external worksite scheme or in open establishments, or a document containing the explicit consent of the prisoner to work. The Government explains that this scheme is applicable to both public and private enterprises. Moreover, the Government states that no penalty whatsoever may be imposed on any prisoners who refuse to work for private enterprises. According to the Government, such refusal would in no way deprive them of the benefit of one of the rehabilitation or reintegration schemes, particularly conditional release, “semi-freedom” and prison leave. As regards the supervision of prisoners performing prison work, the Government states that this is still the responsibility of prison officers and cannot be assigned to the employing enterprise. Furthermore, the Committee notes the Inter-Ministerial Order of 12 December 2005 fixing the pay scale for prison labour. Under the terms of this scale, the rate of pay varies from 20 per cent to 60 per cent of the guaranteed national minimum wage according to the level of skills, namely 20 per cent for unskilled labour, 40 per cent for skilled labour and 60 per cent for specialized labour. The Government explains that prisoners also have social security coverage. Finally, the Committee notes the Government’s indication that in practice no prisoner has been employed by a private enterprise.

The Committee duly notes this information. It requests the Government to continue to supply information on the application in practice of the provisions of the Code on the organization of prisons permitting the hiring out of prison labour to private enterprises. It also requests the Government to indicate provisions of the national legislation requiring the consent of prisoners to work for private persons, as indicated by the Government in its report. Finally, it requests the Government to indicate provisions of the national legislation establishing the guarantees mentioned by the Government in its report.

5. Punishment of vagrancy. In its previous comments the Committee noted that, according to section 196 of the Penal Code, any person of no fixed abode and no means of livelihood who ordinarily exercises no trade or occupation although fit for work and is unable to show that he or she has sought work or has refused an offer of paid work shall be deemed guilty of vagrancy and shall be liable to imprisonment ranging from one to six months. The Committee drew the Government’s attention to the fact that the above definition of vagrancy is not limited to activities that are unlawful or likely to disturb public order and is therefore tantamount to an indirect constraint to work, which is contrary to the provisions of the Convention. It also noted that section 195 of the Penal Code prescribes the same penalty for anyone regularly engaging in begging. The Committee asked the Government to supply information on the application in practice of section 196 of the Penal Code and to supply copies of relevant court decisions. It also asked the Government to take steps to limit the scope of section 196 solely to persons engaging in activities that are unlawful or likely to disturb public order.

In its reply the Government indicates that the magistrates, in handling vagrancy issues, do not take account of the possibility for a person to work or of the fact that a person exercises no trade or occupation. In the light of the information supplied by the Government, the Committee understands that section 196 of the Penal Code is used solely for the purpose of preventing offences disturbing public order or endangering the safety of persons. Reiterating the terms of section 196, the Committee observes, however, that these provisions punish with imprisonment the simple fact of having no fixed abode or means of livelihood and of having no regular trade or occupation in spite of being fit for work and unable to demonstrate efforts to seek work, or of having has refused paid work, and not the fact of having done anything to disturb public order or endanger the safety of persons. The Committee therefore requests the Government once again to take steps to limit the scope of section 196 of the Penal Code solely to persons who engage in unlawful activity or in activities likely to disturb public order. It also requests the Government once again to provide information on the application in practice of section 196 and supply copies of relevant court decisions to enable the Committee to examine the scope of these provisions.

6. Trafficking in persons. The Committee notes the adoption of Act No. 09-01 of 25 February 2009 amending and supplementing Ordinance No. 66‑156 of 8 June 1966 issuing the Penal Code. The Committee notes with interest that this Act adds a section 5bis to Title 2, Chapter 1 in Volume 3 of Part Two of the Penal Code, concerning the trafficking in persons. It notes that the provisions of this section criminalize trafficking for the purposes of exploitation, including forced labour or service, slavery or slave-like practices, and also servitude. Under the terms of section 303bis 4(2) of the Penal Code as amended by Act No. 09-01, any person convicted of trafficking in persons shall be liable to imprisonment ranging from three to ten years and a fine ranging from DA 300,000 to 1 million. The term of imprisonment may be increased to up to 20 years in cases where trafficking is accompanied by various aggravating circumstances. The Committee requests the Government to supply information on the application in practice of these provisions, indicating, in particular, whether any persons have been prosecuted or convicted for engaging in trafficking in persons, as well as the number of cases in progress in the criminal courts and sentences handed down. Please also send copies of the relevant court decisions with the next report.