Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 2(2)(c) of the Convention. 1. Work of prisoners for private companies. In its earlier comments, the Committee referred to the national provisions allowing the law enforcement authorities to conclude agreements with private companies concerning the work of prisoners (section 101(3) of Order No. 6/1996 (VII 12) of the Ministry of Justice on the implementation of provisions concerning prison sentences and detention). The Committee noted the Government’s indications in its reports that prisoners are in a legal relationship with a penitentiary institution and are not directly employed by a third party, and perform labour under the supervision and control of the law enforcement bodies. The Committee also noted that prisoners’ conditions of work are governed by the general provisions of labour law (subject to certain deviations). Recalling that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, the Committee asked the Government to take the necessary measures to ensure observance of the Convention, such as, e.g., to provide that any prisoners working for private companies offer themselves voluntarily, without being subjected to pressure or the threat of any penalty, and subject to guarantees as to wages and other conditions of employment approximating a free employment relationship.

The Committee notes the Government’s clarifications as regards the interpretation of section 33(1)(d) of Law-Decree No. 11 (1979) on the execution of prison sentences, according to which convicts have to carry out their work assignments given to them in accordance with their vocational qualifications and abilities. The Government indicates that, in practice, only those convicts who expressly ask for a job may be given work assignments, a number of job opportunities being always lower than the number of convicts applying for a job. In other words, convicts do not have an obligation to work, but work may be assigned to them according to their choice. In order to get a work assignment, convicts shall apply for a particular job by signing an application form, which should be examined by admission and employment committees of penitentiary institutions. The Government states that convicts are free to apply for work with private companies following the above procedure, without being forced to do so and without any threat of punishment for refusal. It also confirms its earlier indications that prisoners are guaranteed to work under conditions approximating a free employment relationship, as regards occupational safety and health, working time and rest periods, paid leave, etc. Regarding remuneration for work, the amount of wages payable to convicts may not be lower than one third of the minimum wage, if they have worked full time and have met the performance requirements up to 100 per cent (section 124(3) of Order No. 6/1996 (VII 12) of the Ministry of Justice referred to above). Convicts are also entitled to a wide range of health-care provisions and accident-related benefits within the scope of social security benefits (section 16(1)(n) of Act LXXX of 1997 on the eligibility for social security benefits). The Government further states that convicts are allowed to learn new skills and, as far as possible, perform work of the same type as they use to do before conviction.

While noting this information, the Committee hopes that, in the course of the preparation of the comprehensive amendment of Law-Decree No. 11 of 1979 on the execution of prison sentences, referred to in the Government’s earlier report, the necessary measures will be taken in order to include into the revised legislation a provision requiring free and informed consent for the work of prisoners for private companies, both inside and outside prison premises, so as to bring legislation into full conformity with the Convention and the indicated practice. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.

2. “Public utility labour” performed by convicted persons placed at the disposal of private parties. In its earlier comments, the Committee referred to the Penal Code provisions concerning “public utility labour”, which shall be performed, as a penal sanction, without deprivation of a person’s freedom and without remuneration, but may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations (sections 49–50 of the Penal Code). The Committee noted the Government’s indications that the work to be performed as “public utility labour” must be of public interest and that the employer (which may be a public institution, or a private business organization) shall observe the safety provisions and ensure the same working conditions as those enjoyed by workers employed on a basis of a contract.

The Committee notes the Government’s indication in its report that the law does not contain any express provisions concerning the voluntary informed consent of the person concerned to perform community service, nor does it offer an opportunity to a convicted person to choose between community service and confinement in prison. The Government indicates that the penitentiary administrator and the probation service should keep a register of institutions and business organizations that need the work of persons sentenced to community service (Decree No. 9/2002 (IV.9) of the Ministry of Justice). The Committee notes the Government’s indication in the report that, according to a 2008 study, probation officers approached municipal bodies or institutions to employ convicts in 60 per cent of cases, private business organizations in 10.9 per cent of cases and various non-public associations and foundations in 9.3 per cent of cases. The Government confirms that community service is performed in the public interest and not for profit.

While noting this information, and referring to point 1 of the present observation, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted persons are placed at the disposal of private individuals, companies or associations. Referring to the explanations contained in paragraphs 123–128 of its 2007 General Survey on the eradication of forced labour, the Committee hopes that, in the course of the revision of penitentiary legislation, the necessary measures will be taken to introduce a requirement of the informed voluntary consent of convicted persons sentenced to community service to work for a private employer. It requests the Government to indicate, in its next report, the progress achieved in this regard. Pending the adoption of such measures, please continue to provide information on the practical implementation of special programmes for carrying out “public utility labour” including a list of authorized associations or institutions using such labour and giving examples of the type of work involved.