Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 105) sur l'abolition du travail forcé, 1957 - Pérou (Ratification: 1960)

Autre commentaire sur C105

Observation

Demande directe

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Article 1(a) and (d) of the Convention. Imposition of a sentence of community service as a punishment for expressing views opposed to the established political or economic or for having participated in strikes. In its previous comments, the Committee referred to the observations of the General Confederation of Workers of Peru (CGTP) concerning the amendments made in 2007 to section 200 of the Penal Code, which makes extortion a criminal offence. Under the terms of subsection 3, any person who through violence or threats occupies premises, blocks communication routes, prevents the free movement of citizens or disturbs the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities a benefit or an undue economic advantage or any advantage of any other nature, shall be liable to a custodial sentence of five to ten years. According to the CGTP, the definition of this offence is ambiguous and too broad, thereby making it possible to impose criminal penalties on those who participate in protest action opposing the political, social or economic system or who exercise the right to strike.

In this regard, the Committee noted that the national legislation establishes the voluntary nature of work performed by persons sentenced to imprisonment (section 65 of the Code for the Enforcement of Sentences). However, it noted that, under sections 31 to 34 of the Penal Code and section 119 of the Code for the Enforcement of Sentences, the penalty of the performance of community services – which may be applied either as an autonomous sentence or as an alternative to a custodial sentence – obliges the person concerned to perform work free of charge for various entities. Moreover, the legislation referred to above makes no mention of the possibility for the convicted person to consent to, or to refuse, the sentence of the performance of community service when applied as an alternative to a custodial sentence. The Committee therefore asked the Government to clarify whether the sentence of the performance of community services could be imposed as an alternative in the event of a violation of section 200(3) of the Penal Code and, if so, whether the person concerned is called upon to give consent to the application of this penalty.

The Government indicates in its latest report that persons convicted of extortion may ask to benefit from the mechanism for the reduction of sentences on account of completed work or training and also to request release on parole. It also states that it does not have any information at present on any complaints made for violations of section 200(3) of the Penal Code or on any proceedings instituted or rulings issued in this respect.

The Committee notes this information. It observes that the provisions of section 200(3) are drafted in broad terms and could be applied to activities undertaken during a social protest or a strike. This being the case, the Committee needs to be sure that any persons who participate peacefully in these activities cannot incur any criminal penalty under the terms of which they could be obliged to work. The Committee therefore requests the Government once again to clarify whether persons found guilty of a violation of section 200(3) of the Penal Code could be sentenced as an alternative to the performance of community services. If so, the Government is requested to indicate whether, in order to impose this sentence, the judge must obtain the prior consent of the convicted person. The Committee also requests the Government to continue to supply information on any court rulings issued on the basis of section 200(3) of the Penal Code so that it can evaluate the manner in which the courts interpret these provisions.