Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 105) sur l'abolition du travail forcé, 1957 - Kirghizistan (Ratification: 1999)

Autre commentaire sur C105

Observation

2023

Demande directe

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Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. 1. Penal sanctions for an insult of a public official. The Committee previously noted that section 342 of the Penal Code of 1997 states that the insult of a public official during the discharge of their official duties, or in connection with this discharge, shall be punishable by a fine of 50 to 100 minimum monthly wages or to imprisonment of a term of up to six months (which involves the obligation to perform work). The Committee recalled that Article 1(a) of the Convention prohibits the use of compulsory labour (including compulsory prison labour) as a punishment for holding or expressing political views.

The Committee notes the Government’s indication in its report that the new Penal Code entered into force on 1 January 2019. The Committee notes with interest that the Penal Code of 2019 does not contain a provision considering the insult of a public official as an offence punishable by sanctions of imprisonment.

2. Penal sanctions for organization and participation in an illegal religious group. The Committee notes that according to section 196(1) of the Penal Code of 2019, organization or leadership of an illegal religious group whose activities are carried out under the guise of preaching religious beliefs and performing religious rituals, if it causes significant harm to citizens’ rights or encourages them to abandon social activities or refuse compliance with civic duties, or if it involves minors, can be punished with category IV correctional labour or category I imprisonment (including compulsory prison labour). As per section 196(2) of the Penal Code of 2019, active participation in the activities of such an illegal religious group or its systematic promotion can be punished with category IV correctional labour or category I imprisonment.

The Committee recalls that Article 1(a) of the Convention prohibits the use of forced or compulsory labour, including compulsory prison labour, as a punishment for holding or expressing views ideologically opposed to the established political, social or economic system. In its 2007 General Survey on the eradication of forced labour, paragraph 154, the Committee indicates that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. Nevertheless, sanctions involving compulsory labour fall within the scope of the Convention if they enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system. In this regard, the Committee observes that provisions of section 196 of the Penal Code provide for the imposition of penalties involving compulsory labour in circumstances defined in terms which are broad enough to give rise to questions about their conformity to the Convention. The Committee requests the Government to provide detailed information on the manner in which section 196 of the Penal Code is applied in practice, with an indication of whether any court rulings have been handed down under this section, the penalties imposed and a description of the acts giving rise to such rulings, to enable it to examine to what extent these provisions are compatible with the Convention.

Article 1(c). Penal sanctions applicable to public officials. The Committee previously noted that pursuant to section 316(1) of the Penal Code of 1997 (“Negligence”), the non-performance or improper performance by an official of his/her duties as the result of a negligent attitude, causing substantial harm to the legitimate rights and interests of persons or organizations, or to state interests, is punishable by arrest (which involves deprivation of freedom and an obligation to perform labour). The Committee requested the Government to provide information on the application of section 316(1) of the Penal Code in practice, including copies of court decisions which could define or illustrate its scope, in order to enable the Committee to ascertain whether this provision is not used as a means of labour discipline within the meaning of the Convention.

The Committee notes the Government’s information that since 2015, two persons have been imprisoned under section 316 of the Penal Code of 1997. The Committee further notes that according to section 331(1) of the new Penal Code of 2019 (“Negligence”), the non-performance or improper performance by an official of his/her duties as a result of negligent behaviour, causing significant harm can be punished with category IV community service or with category III correctional labour. The Committee further notes that according to Annex 1 of the Penal Code of 2019, the definition “significant harm” covers various consequences, including, for example, violation of constitutional human and civil rights and freedoms or significant material (property) damage, as well as other consequences clearly indicating the significance of the harm caused. In its 2007 General Survey on the eradication of forced labour, paragraph 175, the Committee indicates that “the Convention does not prohibit the imposition of sanctions (even if involving compulsory labour) on persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of essential services, or which are committed either in the exercise of functions that are essential to safety or in circumstances where life or health are in danger.” In this regard, the Committee observes that the wording of section 331(1) of the Penal Code of 2019, by referring to “significant harm”, might lead to the imposition of penalties involving compulsory labour in a range of circumstances that are not limited to situations where the life, personal safety or health of the population is endangered. The Committee requests the Government to provide information on the manner in which section 331(1) of the Penal Code of 2019 is applied in practice, with an indication of whether any court rulings have been handed down under this section, the penalties imposed and a description of the acts giving rise to such rulings, to enable it to examine to what extent these provisions are compatible with the present provisions of the Convention.