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

Article 3 of the Convention. Worst forms of child labour. Clause (a). 
1. Sale and trafficking of children. The Committee previously noted that, by virtue of section 3 of the Law on Sending a Labour Force Abroad and Receiving Labour Force and Specialists from Abroad, employment abroad is prohibited for persons under the age of 18 years. The Committee asked the Government to indicate whether section 3 of that Law and section 7(4) of the Law on the Protection of the Rights of the Child prohibit the trafficking of children for labour exploitation. The Committee notes the Government’s indication that these provisions prohibit the employment of children abroad, but that recent amendments made to the Criminal Code of Mongolia (Criminal Code) focus more specifically on the issue of child trafficking. The Committee notes with interest that these amendments provide a clear definition of the offence of trafficking, and impose a stiffer sentence for the commission of this crime. Specifically, pursuant to section 3(a) of the amended Criminal Code, trafficking in persons is defined as transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, including abduction, fraud, deception, the abuse of power or abuse of a position of vulnerability or by giving payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Section 3(a) states that exploitation includes, at a minimum, exploitation for the purpose of prostitution or other forms of sexual exploitation, forced labour or services and slavery, or practices similar to slavery and servitude. The Committee further notes that the amended section 113 of the Criminal Code on trafficking, which replaces a previous provision on human selling and buying, prohibits the trafficking in persons for the purpose of exploitation. Finally, the Committee notes that this section imposes stiffer punishments upon the offender when the offence involves minors (section 133.2.1).

2. Forced or compulsory labour. In its previous comments, the Committee noted the Government’s indication that the Labour Code was amended in 2003 and the term “forced labour” therein defined, and requested the Government to provide a copy of the amended Labour Code. The Committee notes that section 7 of the amended Labour Code states that no one may be illegally forced to work, and that, by virtue of section 3.1.14 of the Labour Code, “forced labour” is defined as work or duty which is exacted from an employee under the menace of penalties for maintaining labour discipline, participating in strikes or expressing one’s views on political, economic and social structures or for the purpose of discriminating on the grounds of social origin, nationality and religion, and regardless of the existence of hazardous conditions for the employee’s life and health. Finally, the Committee notes that this provision is in addition to the prohibition in section 16(4) of the Constitution that states that no one may be unlawfully forced to work and the prohibition against illegally forcing children to work in section 121.1 of the Criminal Code that states that illegally forcing a child to labour shall be punishable by a fine equal to 51–250 amounts of minimum salary or imprisonment for a term of up to four years).

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes in the Government’s report that section 115 of the Criminal Code criminalizes the act of involving persons “under legal age” in prostitution and that the sentences are stiffer when done by a parent, guardian, custodian or pedagogue or if done repeatedly, by using violence or threats. (In 2005–06, two people were convicted under this provision.) Furthermore, the Committee notes that, by virtue of section 124, it is illegal to induce others to engage in prostitution. The Committee notes, however, that the sentence imposed upon committing this crime involving a person under the legal age is lower than when the crime is committed against other persons. The Committee requests the Government to indicate the difference in interpretation and application between sections 115 and 124 of the Criminal Code and, if they apply to the same type of crime, requests the Government to amend its legislation such that, when the crime is committed against children under 18 years of age, the sentence is at least as stiff as for when the crime is committed against other persons.

2. Use, procuring or offering a child for the production of pornography or for pornographic performances. In its previous comments, the Committee noted that, by virtue of sections 122 and 123 of the Criminal Code, it is an offence to press a child into pornography. It requested the Government to indicate whether the Law on Combating Pornography prohibits the use of a child under 18 years of age for the production of pornography and for pornographic performances and to provide a copy of this law. The Committee notes that the section 2.1 of the resolution of the Supreme Court of Mongolia, on the interpretation of section 113 of the Criminal Code, indicates that trafficking for the purpose of involving a person in pornography is prohibited under this section. The Committee also notes that the preparation, dissemination, sale, display to the public and importation of pornographic materials is prohibited under section 123 of the Criminal Code, and that inducing a person under the age of 16 to commit such a crime carries a stiffer sanction. The Committee reminds the Government that, by virtue of Article 3(b) of the Convention, the use, procuring or offering of a child under the age of 18 for the production of pornography or for pornographic performances constitutes one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, it is under the obligation to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee requests the Government to take the necessary measures to prohibit the use, procuring or offering of a child under 18 years of age for the production of pornography and for pornographic performances. The Committee also once again requests the Government to provide a copy of the Law on Combating Pornography.

Clause (c). Use, procuring or offering of a child for illicit activities. In its previous comments, the Committee requested the Government to identify and provide the text of any legislation, existing or envisaged, to prohibit the use, procuring or offering of a child under the age of 18 for illicit activities, in particular for the production and trafficking of drugs. In this respect, the Committee notes that sections 192.1 and 192.2 prohibit the “illegal preparation, acquisition, transportation, delivery and distribution” of narcotic drugs and psychotropic substances and that section 192.3.2 imposes stiffer penalties when these crimes are committed involving a minor. The Committee further notes that, by virtue of section 56.1.3, when imposing a penalty, the court shall recognize as an aggravating circumstance (and should impose a stiffer penalty), the act of instigating or involving persons under the legal age into committing a crime or causing the commission of a crime. The Committee requests the Government to indicate the definition of “minor” and “legal age” as used in sections 192.3.2 and 56.1.3 of the Criminal Code.

Clause (d). Hazardous work. 1. Self-employed children and children working in the informal sector. In its previous comments, the Committee noted that, by virtue of sections 109(4) and 110(3) of the Labour Code, persons under 18 years of age shall not be employed in any work which would negatively affect their intellectual development and health, or under abnormal working conditions. However, it observed that, by virtue of section 4 of the Labour Code, the scope of application of this law is limited to persons who work for an employer under a contract of employment. The Committee further noted that, according to the survey conducted by the Mongolian Employers’ Federation in 2003, 54.3 per cent of employers involved in the survey had been employing children without a formal employment contract. The Committee also noted the Government’s indication that 90 per cent of working children work in household enterprises and are not paid for their labour. The Committee requested the Government to provide information on the measures taken to ensure that children working without an employment contract are protected against hazardous types of work.

The Committee notes with interest that, pursuant to Order No. 107 of the Minister of Labour of 26 September 2008, a list of types of prohibited work for minors was adopted. The Committee also notes the Government’s statement that this list was approved following consultation with workers’ and employers’ organizations. This list contains 39 jobs and services, seven labour conditions and 53 working positions in 11 economic sectors that are prohibited for minors, and intends to address child labour in both the formal and informal sectors.

2. Horse jockeys. The Committee had previously noted that, according to the report on human rights and freedoms of 2003 prepared by the National Human Rights Commission of Mongolia (paragraph 1.1.3.1.5), there is increasing criticism in the country about the denial of child rights in horse racing. It is estimated that 40–50 celebrations occur each year, and on each occasion 2,000 child jockeys (aged 6–16) are engaged. The Committee had also noted that horse racing causes potential risks to the life and health of very young children.

The Committee notes in the Government’s report that, in recent years, gambling on children’s horse racing has increased but that the Government pays due attention to improving the protection of jockeys and monitoring the appropriate criteria for racehorse trainers. Under the Law on National Naadam Festival, the lower age limit for children riding racehorses is established at 7 years of age and this provision, as well as other relevant regulations, is stipulated in a circular during the period of the festival. Measures to improve the regulations are being taken. The Committee further notes that in 2006 the ILO–IPEC, in conjunction with the National Board for Children (NBC), organized a forum in this regard, in which various issues and difficulties were discussed by participants, following which recommendations were related to public organizations and NGOs responsible for children’s rights, as well as racehorse trainers. In order to implement some of the forum’s recommendations, the NBC is drawing up the standards for protective clothing to ensure the children’s safety, with financial support from ILO–IPEC.

The Committee further notes that, in its concluding observations, the Committee on the Rights of the Child expressed concern “at the hazardous situation of children increasingly involved and exploited in traditional horse racing, which has undergone considerable changes from traditional sports to profitable businesses with child-abusive and exploitative features. In particular, it is concerned, that children, sometimes as young as 8 years old, are involved and that such involvement can generate serious injuries, even fatalities” (CRC/C/15/Add.254, 21 September 2005, paragraph 60).

The Committee must express its concern at the continued use of children under 18 years of age in horse racing. It considers that horse racing, by its nature and the extremely hazardous conditions in which it is performed, is likely to harm the health and safety of the children. The Committee takes note of the information provided by the Government and welcomes the adoption of measures aimed at protecting the health and safety of child jockeys. Nevertheless, it considers that horse racing is inherently dangerous to the health and safety of children and consequently requests the Government to take the necessary measures to ensure that jockeys under 18 years of age do not perform their work under circumstances that are detrimental to their health and safety. In this respect, the Committee requests the Government to ensure that the protective measures that are in place and which are aimed at protecting the health and safety of child jockeys under 18 years of age are strictly enforced. Furthermore, it urges the Government to ensure that unannounced inspections are carried out by the labour inspectorate to ensure that children under 18 years of age do not perform their work under circumstances that are detrimental to their health and safety.

Article 6. Programmes of action. The Committee notes in the Government’s report that the National Programme of Action for the Development and Protection of Children (National Programme of Action) is being carried out in three stages during the 2002–10 period. It consists of 18 objectives, the 13th of which is “Intensify activity to eliminate worst forms of child labour” that calls for the following actions:

–      renewing the list of work and employment types prohibited to minors and raising public awareness of this list;

–      expanding training and public awareness regarding international conventions and facts about of child labour;

–      conducting national surveys on the situation of child labour;

–      expanding action in support of family livelihoods;

–      eliminating the worst forms of child labour, in part by increasing community and individual participation in the monitoring and reporting of the worst forms of child labour to state bodies; and

–      immediately taking urgent measures to eliminate child labour in the informal mining sector.

The Committee requests the Government to continue providing information on the implementation of the National Programme of Action, or any other similar programmes, and its impact in eliminating the worst forms of child labour.

Article 7, paragraph 1, and Part III of the report form. Penalties and court decisions. The Committee notes the information in the Global Report on Trafficking in Persons, issued by United Nations Office on Drugs and Crime (“Trafficking Report”) on 12 February 2009, that the number of persons investigated under the “sale and purchase of humans” in 2005 was four, in 2006 was nine, and in 2007 was 16. The Trafficking Report also indicates that, of the 105 presumed victims of trafficking identified in 2007, 12 were children. The Committee further notes the Government’s indication that, in 2007, three persons were convicted and sentenced for this offence. However, the Committee notes that the Committee on the Elimination of the Discrimination Against Women (CEDAW), in its comments of 7 November 2008, expressed concern about the increasing incidence of trafficking and exploitation of women and girls and the low rate of prosecutions. Furthermore, the CEDAW expressed particular concern that most cases of trafficking in persons are dismissed (CEDAW/C/MNG/CO/7, paragraph 27). The Committee expresses its concern at the relatively low rate of convictions, and urges the Government to take the necessary measures to ensure that persons who traffic in children are prosecuted. In this regard, the Committee requests the Government to provide information on the number and nature of infringements reported, prosecutions, convictions and penal sanctions applied.

Article 7, paragraph 2. Effective and time-bound measures. Clauses (b) and (c). Providing the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration and access to free basic education and vocational training for all children removed from the worst forms of child labour. The Committee notes in the Government’s report that Phase II of the ILO–IPEC programme “Support to the proposed national subprogramme to eliminate the worst forms of child labour: Time-bound measures in Mongolia” implemented the Adolescents’ Development Centre of Mongolia, which assists children affected by commercial sexual exploitation as well as children at risk in Ulan Bator’s Bayanzurkh and Chingeltei districts. A total of 46 children involved in prostitution and 223 girls at risk were covered by the programme and, as a result, 60 children underwent remedial education, 95 were given professional training and 54 re-entered the general educational schools. Additionally, 22 children were mediated to safe labour and 124 families were provided with necessary assistance. The programme has also resulted in the creation of a national network of Girls’ Development Centres, whose purpose is preventing children from sexual exploitation and human trafficking.

Another ILO–IPEC project, in conjunction with the “Future Generation’s Development Centre” NGO – the supporting organization for the international network against child sexual exploitation (ECPAT) – commenced running activities including:

–      changing the conception and position held by the State, by workers’, employers’ and other organizations on the issue of commercial sexual exploitation of children;

–      building capacity to prevent child prostitutes and children at risk from being affected by their work;

–      giving advice on this topic;

–      providing health services; and

–      providing vocational and professional training.

As a result of this project, 390 children at risk were prevented from entering prostitution and 120 girls in prostitution were helped to recover from their ordeal. The Committee requests the Government to continue providing information on the number of children removed from the worst forms of child labour, in particular prostitution, and rehabilitated pursuant to the implementation of the ILO–IPEC programmes and projects.

Clause (d). Identifying and reaching out to children at special risk. 
1. Street children. In its previous comments, the Committee requested the Government to supply information on the number of children targeted and the impact of activities conducted to protect street children and children from vulnerable social groups from the worst forms of child labour. The Committee notes in the Government’s report that, in 2006, 1,128 children aged 3–16 years of age, and 1,067 in 2007, were brought to Children’s Welfare Centres of the Ulan Bator Police Department. As of 2007, 1,450 children are living at more than 40 such centres in the capital. Of these children, 72, 58 and 50 were registered as homeless in 2005, 2006 and 2007, respectively. A research report prepared by the National Commission of Human Rights found 99 children who spent their nights in building entrances, tunnels and supermarkets. The “Project for the Protection of Children from Violation and Exploitation” implemented in 2002–06 by UNICEF, in collaboration with the National Board for Children, established an information network on street children and provided social services such as education and health care.

Finally, the Committee notes that, in its concluding observations, the Committee on the Rights of the Child expressed concern “at the increasing number of street children living in very harsh conditions and that the causes leading to this phenomenon are often abusive family situations” (CRC/C/15/Add.254, 21 September 2005, paragraph 62). The Committee must express its concern over the situation of street children in Mongolia and requests the Government to provide information on the number of street children removed from the streets and given education pursuant to the implementation of programmes and projects such as the abovementioned ones.

2. Children working in mines. In its previous comments, the Committee urged the Government to redouble its efforts to ensure that children under 18 years of age do not work in underground mines in conformity with section 1 of Appendix 2 to Order A/204 of 1999 establishing the list of types of work prohibited to women and minors and to provide information on any progress made in this regard.

The Committee notes in the Government’s report that, during the 2005 World Day against Child Labour, the Government and employers’ and trade union organizations signed the “Eliminate Child Labour in the Mining Sector” appeal (the appeal), which was implemented from 2006 to 2008. Within this appeal, 27 actions were undertaken comprised of nine basic objectives including: updating the legal system; improving the information, cooperation, organization, social security and labour safety for such children; raising both children’s and miners’ awareness; providing basic services such as education and health care to the children; and developing a social partnership with the mining sector. Three separate projects are assisting in the implementation of the appeal: (i) the Swiss Agency for Development and Cooperation’s (SADC) “Sustainable Micro Mining” project; (ii) the ILO–IPEC and Mongolian Employers’ Federation “Role and participation of employers in eliminating child labour at the mining sector” project; and (iii) the UNPF’s “social and economic situation of gold miners” project. The Committee notes that 208 children working in the mining sector and 110 children at risk in the Bornuur, Sumber, Jargalant and Zaamar soums were covered by the ILO–IPEC project. In the Bayangol soum and the Selenge aimag, 256 children were re-educated, 65 received professional training and 69 re-entered general education schools. In Phase III, the project will be implemented in the Tuv, Bayankhongor, Dornod, Dornogobi and Uvurkhangai aimags. Another project, the “citizens are employed informally in the mining sector”, organized jointly by the Ministry of Social Welfare and Labour and the SADC, will cover 12 aimags and one district in two stages and was planned to start in April 2008. So far, 10,290 people, of which 107 are children, have been registered in the project; at least 4,035 children have been prevented from entering employment and measures are being taken to keep about 2,945 from re-entering the mining sector. The Committee requests the Government to provide information on the impact of these projects, and any other similar projects, in removing children working in the mining sector and rehabilitating them.

3. Children from impoverished families. The Committee notes in the Government’s report that, by virtue of the Social Welfare Law and the Employment Promotion Law, as well as various programmes, children from poor and very poor families are offered financial assistance for education and health services or professional training and orientation. The objective of these measures is to prevent vulnerable children from reverting to child labour or of becoming homeless, which in turn puts them at greater risk of being involved in the worst forms of child labour. The Committee requests the Government to supply a copy of the Social Welfare Law and the Employment Promotion Law. It also requests the Government to continue providing information on any programmes, such as the abovementioned ones, in assisting children from poor families from being involved in the worst forms of child labour.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes the information in the Government’s report that, in 2005, the ILO–IPEC “Gender Equality Centre” programme and the Population Training and Research Centre of the National University of Mongolia surveyed about 34,400 persons working in various service sectors in Ulan Bator and near the border points of other aimags: hotels (44 per cent); saunas and massage parlours (60 per cent); and bars and night clubs (31.2 per cent). About 81.2 per cent of the respondents were women, of whom 198 were under 18 years of age. About one third revealed that they had been asked by clients to render sexual services. Ninety-one were prostitutes, with an average age of 19.4 years, and some as young as 14. Roughly 60 per cent of these girls started working before the age of 18. The Committee also notes the information in the Government’s report that, in relation to resolution No. 48 of the Court of Chingeltei district, two persons were convicted for the commercial sexual exploitation of a minor. In addition, the Committee notes that, in its concluding observations, the CRC expressed deep concern “at the increasing number of children engaged in prostitution” (CRC/C/15/Add.254, 21 September 2005, paragraph 64). The Committee expresses its concern about the engagement of children under 18 as prostitutes, and requests the Government to redouble its efforts to address this problem. Furthermore, the Committee requests the Government to provide information on the relevant measures taken. Finally, the Committee requests the Government to continue providing information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penalties imposed.