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

Convention (n° 105) sur l'abolition du travail forcé, 1957 - Turkménistan (Ratification: 1997)

Autre commentaire sur C105

Observation

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The Committee notes the report received from the Government. It also notes the communication from the International Trade Union Confederation (ITUC), received on 1 September 2015, as well as the Government’s reply received in a communication dated 23 October 2015.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. In its previous comments, the Committee noted the Government’s indication that articles 28 and 29 of the Constitution of Turkmenistan guarantee the right to freely hold and express opinions, as well as the right to hold meetings and demonstrations in the manner established by law. The Committee however noted that any violation of the established procedure for the organization of assemblies, meetings or demonstrations constitutes both an administrative and a criminal offence, punishable by a fine, administrative arrest or corrective labour (section 178(2) of the Code of Administrative Offences of 1984), or by corrective labour for up to one year or imprisonment for up to six months (section 223 of the Criminal Code). The Committee requested the Government to provide information on the application in practice of both provisions, while clarifying whether the imposition of an administrative arrest may involve the obligation to perform community work or any other form of compulsory work.

The Committee notes that the Government’s report does not reply to these requests. Referring to its comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee however notes that a new Code of Administrative Offences was adopted on 29 August 2013 and that section 178(2) referred to above has been replaced by section 63 of the Code, which provides for a fine or administrative arrest in the case of any violation of the established procedure for the organization of assemblies, meetings or demonstrations. The Committee notes that section 233 of the Criminal Code remains unchanged and establishes sanctions of corrective labour or imprisonment, both involving compulsory labour. The Committee further notes that insult or defamation against the President is punishable by imprisonment for a period of up to five years and that libel against a judge, lay judge, prosecutor, investigator or the person conducting the inquiry is punishable by a fine, correctional labour of up to two years or imprisonment of up to five years (sections 176 and 192 of the Criminal Code). The Committee notes the adoption of the Internet Development and Services Law of 20 December 2014, and the concerns expressed in this regard by the representative on freedom of the media of the Organization for Security and Co-operation in Europe (OSCE) concerning imprecisely defined propaganda of violence or cruelty and the liability of Internet users for the truthfulness of all the information that they post, and the publication of materials which contain insults or defamation against the President (section 30(3) of the Law).

The Committee notes the ITUC’s allegations that the Government denies freedom of association and expression and that human rights defenders act at great personal risk and anonymously to avoid harassment and reprisals.

The Committee further notes that the European Union, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Human Rights Committee, the Committee against Torture, as well as several governments, in the framework of the Universal Periodic Review on Turkmenistan, have expressed concern at the severe restrictions on freedom of expression in the country and the consistent allegations of reported arbitrary arrests on criminal charges of human rights defenders and journalists, apparently in retaliation for their work (European Union, Press release of 17 June 2015 on “EU-Turkmenistan Human Rights Dialogue”, CCPR/C/TKM/CO/1, CAT/C/TKM/CO/1, A/HRC/17/27/Add.1, A/HRC/WG.6/ 16/TKM/2, A/HRC/WG.6/16/TKM/3 and A/HRC/24/3). In this regard, the Committee notes that the United Nations Working Group on Arbitrary Detention adopted opinions in which it concluded in a number of cases that imprisonment constituted an arbitrary deprivation of liberty for having peacefully exercised the right to freedom of expression (A/HRC/WGAD/2014/40, A/HRC/WGAD/2013/22 and A/HRC/WGAD/2013/5).

The Committee strongly urges the Government to take the necessary measures, in both law and practice, to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political opinion or views opposed to the established system. Pending the adoption of such measures, the Committee requests the Government to provide information on the application in practice of section 63 of the Code of Administrative Offences, sections 176, 192 and 233 of the Criminal Code and section 30(3) of the Internet Development and Services Law of 2014.

Article 1(b). Imposition of forced labour as a method of mobilizing and using labour for purposes of economic development. In its previous comments addressed to the Government under the Forced Labour Convention, 1930 (No. 29), the Committee noted that, in accordance with section 7 of the Law on the legal regime governing emergencies of 1990, in order to mobilize labour for the needs of economic development and to prevent emergencies, state and government authorities may recruit citizens to work in enterprises, institutions and organizations. The Committee considered that the notion of “needs of economic development” did not seem to satisfy the definition of “emergency” referred to in Convention No. 29 and is therefore incompatible with both Article 2(2)(d) of Convention No. 29 and Article 1(b) of Convention No. 105.

The Committee notes the Government’s indication, in its report that the State of Emergency Act, the Emergency Response Act and the Law on preparation for and carrying out of mobilization in Turkmenistan do not mention the concept of “purposes of economic development”, but that citizens may be employed in undertakings, organizations and institutions during mobilization in order to ensure that the country’s economy continues to function and to produce goods and services that are essential to satisfy the needs of the State, the armed forces and the population, in case of emergency. The Committee also notes the Government’s indication that section 19 of the Labour Code provides that an employer may require a worker to undertake work which is not associated with his or her employment in cases specified by law.

However, the Committee notes the ITUC’s allegations in its observations, that in 2014 tens of thousands of adults from the public and private sectors were forced to pick cotton, and farmers were forced to fulfil state-established cotton production quotas, all under threat of a penalty. According to the ITUC, the President issues cotton production orders every year to regional governors, who face dismissal if they fail to meet the quotas. The governors assign responsibilities to district and city officials who, in turn issue orders to school administrators, other public institutions and businesses. Under the applicable legislation, the Government dictates the use of the land through farmers’ associations, which may take away a farmer’s right for “irrational and inappropriate use” of the land. Reporting to the President, the regional governors oversee the farmers’ associations, which manage farmers, and local-level officials, who mobilize other citizens to harvest cotton. The ITUC further alleges that state-owned companies also maintain monopolies over cotton production. According to the ITUC, farmers regularly report being charged by these state-owned companies for services never provided or that gin managers record less volume and lower grade cotton than that delivered by the farmer.

The Committee further notes the ITUC’s allegations that the Government forces public sector workers, including teachers, doctors, nurses and the staff of government offices, to pick cotton, pay a fine or hire a replacement worker, under threat of losing their jobs, having work hours cut or salary deductions. Administrators of state-owned banks, factories and government agencies allegedly force employees to sign a form indicating their awareness that they will “bear the responsibility” if they refuse to pick cotton, and some of them require payments from their staff so that they can hire people to pick cotton in their place. The Committee further notes that, according to the ITUC, for the 2014 cotton harvest, the Government also forced businesses from the private sector to contribute workers to pick cotton. Local authorities decided to limit the operating time for all markets and grocery stores, thus forcing owners of small businesses to close their store and pick cotton, while having to provide a form signed by the farmer as proof of their work in the cotton fields. The ITUC further alleges that some medium and large businesses were also forced to send employees to pick cotton, under the threat of extraordinary audit, finance department, tax inspection and fire inspections. Private bus owners were allegedly forced to contribute by transporting forced labourers to the cotton fields, without any compensation and under threat of confiscation of their licences by the police.

The Committee further notes that, according to the information available from the State News Agency of Turkmenistan, the President of Turkmenistan held several workshops with the regional governors in 2015 in order to review the progress of the cotton harvest. The Committee notes in particular that, on 12 October 2015, the President expressed dissatisfaction with the slow pace of the cotton harvest and gave specific “instructions” to several regional governors in order to respect the “established schedule”, recommending in one case to “mobilise all available reserves”. The Committee further notes that, on 27 October 2015, the President received the “report on labour victory of cotton growers” from the Cabinet of Ministers in charge of the agricultural sectors and the heads of Ahal, Dashoguz, Lebap and Mary Velayat regions on the “fulfilment of the contractual obligations for cotton production”.

The Committee notes with deep concern the widespread use of forced labour in cotton production which affects farmers, businesses and private and public sector workers, including teachers, doctors and nurses, under threat of losing their jobs, salary cuts, loss of land and extraordinary investigations. The Committee recalls that, for the purposes of Conventions Nos 29 and 105, the terms “forced or compulsory labour” are defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. In this context, voluntary offer refers to the freely given and informed consent of workers to enter into an employment relationship, as well as their freedom to leave their employment at any time, without fear of retaliation or loss of any privilege. Accordingly, while temporary transfers of employment might be inherent to certain professions and activities, the Committee considers that the application in practice of provisions, orders or regulations allowing for the systematic transfer of workers for the performance of activities which are unrelated to their ordinary occupations (for example, the transfer of a health-care professional to perform agricultural work) should be carefully examined in order to ensure that such practice would not result in a contractual relationship based on the will of the parties turning into work by compulsion of law. The Committee also recalls that, although certain forms of compulsory work or service (such as work that is part of the normal civic obligations of citizens and minor communal services) are explicitly excluded from the scope of the forced labour Conventions, these exceptions do not include work with a certain quantitative significance and used for the purposes of economic development. The Committee therefore strongly urges the Government to take effective measures without delay to ensure the complete elimination of the use of compulsory labour of public and private sector workers in cotton farming, and requests the Government to provide information on the specific measures taken to this end, in both law and practice, and the concrete results achieved.

The Committee further notes that the Human Rights Committee, the United Nations Country Team, as well as the Committee on the Rights of the Child (CRC), in its 2015 concluding observations, have observed that, while child labour is illegal, enforcement of the laws has to be improved taking into account the persistence of the involvement of children in cotton harvesting (CCPR/C/TKM/CO/1, A/HRC/WG.6/16/TKM/2, A/HRC/WG.6/16/TKM/3 and CRC/C/TKM/CO/2-4). In this regard, the Committee requests the Government to refer to its comments on the application of the Worst Forms of Child Labour Convention, 1999 (No. 182).

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 105th Session and to reply in detail to the present comments in 2016.]