Demande directe (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 29) sur le travail forcé, 1930 - Azerbaïdjan (Ratification: 1992)

Autre commentaire sur C029

Observation

Demande directe

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Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. In its previous comments, the Committee noted the adoption of the Law on Combating Trafficking in Human Beings of 28 June 2005, together with several implementing Decrees, as well as the adoption of the new section 144-1 of the Criminal Code criminalizing human trafficking and related offences with sentences of imprisonment ranging from five to 15 years. It further noted the establishment of the Centre of assistance to victims of trafficking in persons.

The Committees notes with interest that several new provisions have been introduced in the national legislation as a result of Law No. 314-IVQD of 7 March 2012 amending the Criminal Code and of Law No. 609-IVQD of 19 April 2013 amending the Law on Combating Trafficking in Human Beings. According to the amendments brought to the Criminal Code, section 144-1 of the Code now criminalizes both national and transnational forms of trafficking in persons, and legal entities may be held liable for trafficking in persons. This liability does not exclude that of physical persons involved in the commission of the offence. The Committee notes that a new section 144-3 on “Illegal documentation for the purpose of human trafficking” has been introduced in the Criminal Code and establishes penalties of imprisonment from one to four years. The Committee further notes that a new section 14-1 has been added to the Law on Combating Trafficking in Human Beings, according to which a 30-day period is provided to the victims of human trafficking in order to restore their condition, escape the influence of criminals, and make an informed decision on cooperation with criminal prosecution authorities. At the same time, section 20-6 of the Law which prohibited foreign victims or victims without citizenship to be issued the right of residence in the country has been removed.

The Committee also notes that in order to implement the 2009–13 National Action Plan against Human Trafficking, the Cabinet of Ministers has adopted several rules and regulations concerning the social rehabilitation and repatriation of victims of trafficking, as well as a “Program for eliminating social problems that cause Human Trafficking” by Decision No. 81 of 20 May 2011. A new National Plan of Action against Trafficking for 2014–18 has been adopted by Presidential Order No. 667 of 24 July 2014. The Committee notes the Government’s indication that since its inception in 2009, the Centre of assistance to victims of trafficking in persons has provided psychological, legal, medical, financial, as well as other forms of assistance to 166 human trafficking victims and 113 potential victims. The Government adds that the Centre organizes, on an annual basis in several regions, awareness-raising activities concerning human trafficking and the ethical treatment of human trafficking victims. In this regard, the Centre cooperates on an ongoing basis with state authorities, international organizations and NGOs in order to better assist human trafficking victims.

The Committee further notes the report published on 23 May 2014 by the Group of Experts on Action against Trafficking in Human Beings (GRETA), concerning the application by Azerbaijan of the Council of Europe Convention on Action against Trafficking in Human Beings. While noting the efforts made by the Government to develop training and awareness-raising activities on trafficking in persons, GRETA stressed that the Government has focused essentially on fighting trafficking in persons for the purposes of sexual exploitation and should do more to prevent and combat trafficking for the purpose of labour exploitation, and to improve the knowledge of relevant professionals, at national and local levels, about the identification and rights of victims of trafficking. The Committee notes, from the 2014 GRETA report, the Government’s indication that in 2012, 12 criminal cases related to human trafficking were opened against 22 perpetrators, out of which ten were initiated under section 144-1 of the Criminal Code (on trafficking in persons) and two under section 144-2 of the Code (on forced labour). During the first half of 2013, 17 criminal cases were opened under section 144-1 of the Criminal Code and four criminal cases under section 144 2 of the Code. The Committee notes that for trafficking in persons, 13 convictions were handed down in 2012 and 16 convictions during the first half of 2013, while only one conviction has been handed down for forced labour on 25 February 2013. The Committee notes that in its report, GRETA expressed its concern that, despite the fact that the Criminal Code provides for sanctions of imprisonment for a period up to 15 years for offences related to trafficking in persons, the sentences handed down on traffickers are generally too lenient when compared to the gravity of the acts committed against the victims. The Committee further notes that, in its 2015 concluding observations, the UN Committee on the Elimination of Discrimination against Women (CEDAW) expressed its concern that Azerbaijan remains a country of origin, transit and destination of trafficking for purposes of sexual exploitation and forced labour (CEDAW/C/AZE/CO/5). The Committee requests the Government to provide information on the content and application in practice of the National Plan of Action against Trafficking for 2014–18, indicating whether the objectives set out have been achieved and whether an evaluation has been undertaken in order to assess the impact of the measures adopted under both this national plan and the previous plan for 2009–13. The Committee also requests the Government to continue to provide information on the application in practice of section 144-1 of the Criminal Code, including on the number of investigations, prosecutions and convictions related to trafficking in persons, both for purposes of sexual or labour exploitation, as well as the specific penalties applied to those convicted. Please also provide information on the measures taken to ensure appropriate training to the competent authorities, including police officers, prosecutors and judges, and on the resources allocated to them in identifying trafficking victims.

2. Punishment of vagrancy. In its previous comments, the Committee noted that, in spite of the fact that the Criminal Code of 2000 contains no provision concerning vagrancy (which was punishable under the old Criminal Code), vagrancy was still punishable under section 307.1 of the Code of Administrative Offences, which provides that the persons concerned may be taken into administrative detention for a term of up to ten days. It also noted the Government’s repeated indication that section 307.1 is applicable to persons without a definite place of living or means of subsistence, who do not have employment (without having an official status of being unemployed) and who gain their income by pilfering or begging. The Committee pointed out that section 307.1 is worded in such general terms as to lend itself to application as a means of indirect compulsion to work which is contrary to the Convention.

The Committee notes that the Government does not provide information on the application of section 307.1 of the Code of Administrative Offences in practice nor on any measure envisaged to clearly exclude from the legislation any compulsion to work for vagrant people. The Committee again draws the Government’s attention to the explanations provided in paragraph 88 of its 2007 General Survey on the eradication of forced labour, where it has considered that the provisions imposing penalties for mere refusal to work are contrary to the Convention and should be either repealed or amended so as to limit their scope to unlawful activities. The Committee reiterates its firm hope that the necessary measures will be taken with a view to clearly excluding from the legislation any possibility of direct and indirect compulsion to work, for example, by limiting the scope of section 307.1 of the Code of Administrative Offences to persons who carry out unlawful activities (pilfering, etc.), so as to bring the legislation into conformity with the Convention. Pending the adoption of such measures, the Committee requests the Government to supply information on the application of section 307.1 of the Code of Administrative Offences in practice, including copies of any court decisions which could define or illustrate its scope, the number of vagrant people convicted and specific penalties applied.

Article 2(2)(a). Work exacted under compulsory military service laws for non-military purposes. In its earlier comments, the Committee referred to section 9(1) of the Act on the Status of Military Personnel, 1991, under which military servicemen, during the period of their service, may be made to perform work or other tasks not related to military service, in accordance with the procedure laid down by the President of the Republic of Azerbaijan.

The Committee notes the Government’s repeated indication that the abovementioned provision have not been applied in practice. The Committee recalls once again that Article 2(2)(a) of the Convention excludes work or service exacted by virtue of compulsory military service laws from the definition of forced labour only if such work or service is of a purely military character. The Committee therefore requests the Government to take the necessary measures to amend its legislation in order to ensure that any work or service exacted by virtue of compulsory military service laws are of a purely military nature, so as to align its legislation with the Convention and the indicated practice. Pending the adoption of such measures, the Committee again requests the Government to provide information on the application of section 9(1) of the Act on the Status of Military Personnel, in practice, specifying the cases in which military servicemen can be requested to perform duties which are not specific to military service, including the number of military servicemen concerned and the types of work carried out.

Article 2(2)(c). Work of prisoners for private enterprises. In its earlier comments, the Committee referred to section 95.1 of the Code on the Execution of Penal Sentences, under which every convicted person is under an obligation to work, such work being exacted from convicts either at enterprises and workshops of the penitentiary institutions or at other enterprises, outside the penitentiary institution, including private enterprises. While noting that, under the Code on the Execution of Penal Sentences, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observed that, under the legislation in force, the formal consent of prisoners to work for private enterprises does not appear to be asked for.

The Committee again recalls that, according to Article 2(2)(c) of the Convention, work by prisoners for private entities can be held compatible with the Convention only where the necessary safeguards exist to ensure that the prisoners concerned accept such work voluntarily, without being subjected to pressure or the menace of any penalty, and that the conditions of such work approximate those of a free labour relationship. While noting that under the above provisions, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee again expresses the firm hope that the Government will take the necessary measures in order to ensure, both in legislation and in practice, that work may only be performed by prisoners in private enterprises with their free, formal and informed consent, and that such consent is free from the menace of any penalty, including the loss of rights or privileges. The Committee requests the Government to provide information on any progress made in this regard. Please also supply sample copies of contracts concluded between a private enterprise and a penitentiary institution, as well as any contracts between prisoners and a private company.

Article 2(2)(d). Legislation concerning emergency situations. While having noted the Government’s repeated indication that the relevant provisions have not been applied in practice during the reporting period, the Committee again requests the Government to supply, with its next report, a copy of the Law on the State of Emergency, which was adopted and entered into force in 2004.