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

Article 2, paragraph 2(a), of the Convention. Work or service exacted in virtue of compulsory military service laws. The Committee previously noted that section 1 of the Act on the general military duties and on military service of 1993 (as amended) refers to a citizen’s right to perform an alternative (non-military) service in accordance with the law. The Committee requested the Government to provide information on provisions governing such alternative (non-military) service. The Government indicates in its report that a law governing this issue has not yet been adopted. The Committee requests the Government to supply a copy of the law on alternative (non-military) service referred to in section 1 of the above-mentioned Act, as soon as it has been adopted.

Article 2, paragraph 2(c). Work of prisoners for private enterprises. The Committee has noted that under section 107(1) of the Code on the Execution of Criminal Sentences, every convicted person is under an obligation to work, such work being exacted from convicts either at enterprises of penitentiary institutions and at other state-owned enterprises, or at enterprises based on other forms of ownership. It follows from the wording of section 107(1) that compulsory prison labour can be used both at the state-owned and private enterprises. As regards conditions of work of convicted persons, the Committee has noted that under section 108 of the Code on the Execution of Criminal Sentences, hours of work and rest periods, as well as occupational safety and health, are governed by the general labour legislation. In virtue of sections 109 and 111 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 (for board and lodging and on the basis of execution documents) cannot exceed 75 per cent of their monthly earnings. Section 103 of the Code provides for the convicted persons’ social security rights, including old-age pension rights, under the compulsory State social security schemes.

As regards prison labour for private enterprises, the Committee draws the Government’s attention to the provisions of Article 2(2)(c) of the Convention, which expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers, even under public supervision and control.

However, while Article 2(2)(c) of the Convention strictly prohibits that prisoners be hired to or placed at the disposal of private enterprises, the Committee has considered, as explained in paragraphs 59 and 60 of its 2007 General Survey on the eradication of forced labour, that work for private enterprises can be compatible with Article 2(2)(c) only where prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal consent of the person concerned and, in the light of the circumstances of the consent, i.e. the basic obligation to perform prison labour and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relationship, such as conditions of work, wages and social security. If the above conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved.

While noting that, under the national provisions referred to above, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee requests the Government to indicate whether and how the voluntary consent of the prisoners to work for private enterprises is obtained, such consent being free from the menace of any penalty, including the loss of rights or privileges. Please also supply sample copies of contracts concluded between a private enterprise and a penitentiary institution, as well as of any contracts between prisoners and a private enterprise.

Article 2, paragraph 2(d). Work exacted in cases of emergency. The Committee previously noted that any work exacted in cases of emergency is excluded from the prohibition of forced labour under section 8(2) of the Labour Code. It also noted that under article 46 of the Constitution of Tajikistan, a state of emergency may be declared, as a temporary measure, for a period of up to three months. The Committee has noted the adoption of the Law on the protection of population in the emergency situations (No. 588, of 8 July 2004). It has noted that, under section 19 of the Law, the citizens of Tajikistan must assist in the performance of rescue and other urgent works. The Committee requests the Government to indicate, in its next report, what guarantees are provided to ensure that the power to call up labour during a state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in case of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.

Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. The Committee has noted the Criminal Code provisions contained in sections 130 (Trafficking in Human Beings) and 132 (Recruitment of Persons for Exploitation). It requests the Government to provide information on the legal proceedings which have been instituted under these sections of the Criminal Code, indicating the penalties imposed on perpetrators. The Committee also asks the Government to indicate, in its next report, whether any legal proceedings have been instituted under sections 130(3)(b) (Abduction) and 131(3)(b) (Illegal Deprivation of Freedom) of the Criminal Code, in relation to the crimes committed for the purpose of sexual or labour exploitation. Please also provide information on the application in practice of section 153 of the Criminal Code (Violation of the Labour Legislation), referred to by the Government in its report, indicating, in particular, whether this section is applicable to cases of the illegal exaction of forced or compulsory labour.