Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

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. (a) Programme of action. The Committee previously noted that the National Plan of Action (NAP) against Trafficking for 2014–18 has been adopted by Presidential Order No. 667 of 24 July 2014 and requested the Government to provide information on its content and application in practice.

The Committee notes the Government’s information in its report that, in connection with the implementation of the NAP 2014–18, the Ministry of Justice is taking measures to improve the legal framework and institutional mechanisms in the field of combating human trafficking. The NAP also defines measures for prevention of human trafficking, improvement of criminal prosecution, rehabilitation and reintegration of victims, and development of cooperation in this regard. The Committee therefore requests the Government to continue providing information on the implementation of the NAP 2014–18 and to indicate whether it will be renewed in the future.

(b) Penalties and law enforcement. The Committee previously noted the adoption of section 144-1 of the Criminal Code criminalizing human trafficking and related offences with sentences of imprisonment ranging from five to 15 years. The Committees also noted with interest that, according to the amendments brought to the Criminal Code in 2012, section 144-1 of the Code criminalizes both national and transnational forms of trafficking in persons, and legal entities may be held liable for trafficking in persons. Moreover, a new section 144-3 on “illegal documentation for the purpose of human trafficking” had been introduced in the Criminal Code and establishes penalties of imprisonment from one to four years.

The Committee notes the Government’s reply to the questionnaire of the Group of Experts on Action against Trafficking in Human Beings (GRETA) for the evaluation of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings of 2017 that, pursuant to sections 144-1, 144-2 (criminalizing forced labour) and 144-3 of the Criminal Code, in 2015, 33 cases were investigated, 26 were submitted for prosecution, and 28 court decisions were handed down involving 35 persons; in 2016, 26 cases were investigated, 30 cases were submitted for prosecution, and 45 court decisions were handed down, involving 51 persons; while in the first six months of 2017, 22 cases were investigated, 12 cases were submitted for prosecution, and six court decisions were handed down, involving seven persons. However, the Committee notes that more than half of the convicts received conditional penalties (GRETA(2017)21, pages 78–79). The Committee also notes that, according to the same report, during 2015 and 2016, international cooperation on combating trafficking in human beings was enhanced. Law enforcement officers participated in various conferences, workshops and training courses, of which 65 events were held at the international level and 23 at the local level (page 14). The Committee therefore requests the Government to continue providing information on any measures undertaken to strengthen the capacity of law enforcement authorities, as well as on the application in practice of sections 144-1, 144-2 and 144-3 of the Criminal Code, including on the number of investigations, prosecutions and convictions related to trafficking in persons, as well as the specific penalties applied to those convicted.

(c) Identification and protection of victims. The Committee previously noted the establishment of the centre of assistance to victims of trafficking in persons in 2009. Since its inception, the Centre had provided psychological, legal, medical, financial, as well as other forms of assistance to 166 human trafficking victims and 113 potential victims. The Committee further noted that a new section 14-1 was 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 residency in the country had been removed.

The Committee notes the Government’s information that, in 2016, the Centre provided social, legal, medical, psychological and other assistance to 93 trafficking victims. In 2017, the State Social Protection Fund of the Ministry of Labour and Social Protection (MLSP) was planning to open a social shelter for people aged over 18 years who have no fixed abode and a social shelter and rehabilitation institution for neglected or at-risk children. The Committee notes the Government’s reply to the GRETA of 2017 that, in 2015, 63 victims of human trafficking (57 females and six males) were identified, of which 54 were subjected to sexual exploitation and nine to forced labour; while in 2016, 70 victims were identified, of which one was subjected to forced labour (page 12). The Committee further notes that section 123-1, which also provided for the 30-day recovery period, was added to the Criminal Procedure Code following an amendment in 2016. The Government also indicates in its report on measures taken to comply with the Committee of the Parties (CP) recommendation on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings of 2016 that working methods of labour inspectors may be revised by the MLSP to improve the identification of victims of human trafficking for labour exploitation in risky sectors such as construction, agriculture and domestic services, through the cooperation between labour inspectors, trade union representatives and other relevant stakeholders (CP(2016)13, page 46). The Committee requests the Government to continue providing information on the number of victims of trafficking identified, as well as the number of those who received the services provided by the Centre of assistance to victims of trafficking in persons. It also requests the Government to provide information on any progress made regarding the establishment of new social shelters and the cooperation of labour inspectors with other stakeholders.

2. Vulnerable situation of migrant workers. The Committee previously noted the adoption of the Migration Code on 2 July 2013 (Law No. 713-IVQ), which prohibits the confiscation of the passports or identification documents of migrant workers and stateless persons (sections 63.6 and 82.5). The Committee also noted with concern that, according to reports made by GRETA, the United Nations Committee on Economic, Social and Cultural Rights (CESCR), the Office of the High Commissioner for Human Rights for the Universal Periodic Review and by the European Commission against Racism and Intolerance, Azerbaijan is increasingly becoming a country of destination for trafficking of migrant workers for the purpose of labour exploitation, in particular in the construction sector, and to a lesser extent in agriculture and domestic work. Migrants working in such sectors were faced with difficulties making them vulnerable to illegal employment practices and serious forms of abuse.

The Committee notes the Government’s information that the living conditions of migrants were checked during inspections at construction sites, and compliance by employers with the legislation on working time, timely payment of salaries and remuneration for overtime work was verified. Investigations were also carried out regarding the retention of identification documents, while no violation was detected. The Committee also notes that, according to the Government’s report on measures taken to comply with the CP of 2016, the Ministry of Interior Affairs continued to carry out activities in determining and preventing cases of forced labour, such as operational measures carried out at stone and plastic products plants and construction fields in the Garadagh, Sabunchu and Khazar districts of Baku city, as well as at greenhouses in the Absheron and Shamkir districts, together with the State Labour Inspectorate. The information on the indicators of forced labour detected were sent to competent agencies for initial investigation (CP(2016)13, page 44). The Government also indicates in its reply to the questionnaire of GRETA for the evaluation of the implementation that, taking into consideration that illegal migrants are more vulnerable to human trafficking, advocacy was provided to foreigners and stateless persons admitted in the social centres of the State Migration Service, by informing them of the potential risks and the protection methods available (GRETA(2017)21, page 10). The Committee requests the Government to continue providing information on the measures undertaken to ensure that migrant workers are fully protected from abusive practices and conditions that amount to the exaction of forced labour. It also requests the Government to continue providing information on the number and the results of the inspections and investigations carried out concerning the exploitative employment conditions of migrant workers.

Article 2(2)(a). Work exacted under compulsory military service laws for non-military purposes. The Committee previously 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 has not been applied in practice. The Committee also notes that, according to section 3.2 of the Law on Military Duty and Military Service of 2011, the military service is compulsory for all male citizens who have reached 18 years of age. 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 once again 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, it once 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 notes that there is no new information regarding the formal consent of prisoners to work for private enterprises in the Government’s report. The Committee once 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.