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

Convention (n° 29) sur le travail forcé, 1930 - Paraguay (Ratification: 1967)

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Observation

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion held in June 2017 in the Committee on the Application of Standards of the International Labour Conference (hereinafter the Conference Committee). The Committee notes the Government’s report received in 2019, and the observations of the International Organisation of Employers (IOE), received on 1 September 2017, the International Trade Union Confederation (ITUC), received on 1 September 2017 and 9 September 2019, the Central Confederation of Workers Authentic (CUT-A), received on 2 September 2017 and 30 August 2019, and the National Confederation of Workers (CNT), received on 26 August 2019.

Articles 1(1), 2(1) and 25 of the Convention. 1. Institutional framework for action to combat forced labour. In its previous comments, the Committee considered that the adoption of the National Strategy for the Prevention of Forced Labour 2016-20 (Decree No. 6285 of 15 November 2016) constituted an important step in action to combat forced labour. It urged the Government to take the necessary measures for the effective implementation of the Strategy, particularly in regions and sectors where indicators of the existence of forced labour have been detected and to raise awareness of the issue. The Committee notes that, in its conclusions, the Conference Committee urged the Government to: continue including the social partners in the process of the implementation of the Strategy; develop regional action plans; and develop priority action to raise awareness of forced labour and protect victims.

The Committee notes the Government’s indication in its report that Decree No. 7865 of 12 October 2017 provided for the establishment of the National Commission on Fundamental Labour Rights and the Prevention of Forced Labour (CONTRAFOR), under the responsibility of the Ministry of Labour, Employment and Social Security (MTESS), replacing the Commission on Fundamental Labour Rights and the Prevention of Forced Labour. The participants in the Commission include the representatives of 14 ministries, the Paraguay Indigenous Institute (INDI) and the Council of Indigenous Peoples of Chaco, as well as representatives of employers’ and workers’ organizations. The general function of the CONTRAFOR is to coordinate public policies for the prevention and eradication of forced labour at the national level, and specifically to determine the processes for the implementation of the National Strategy for the Prevention of Forced Labour 2016-20 and to propose relevant adjustments. The Committee also welcomes the adoption, through the CONTRAFOR, of the Plan of Action for the prevention and eradication of forced labour in Paraguay 2017-19. The Plan covers three areas: (i) the preparation of a diagnostic study on the situation with regard to forced labour; (ii) interinstitutional and tripartite coordination (including the coordination of action for the implementation of the Strategy and the strengthening of labour inspection so as to be able to deal effectively with complaints and denunciations); and (iii) awareness and visibility of the issue of forced labour. The Plan also calls for the Monitoring and Evaluation Commission, which includes representatives of social partners, to prepare an annual report on progress and the achievement of the planned objectives as a basis for making adjustments and coordinating the development of the next plan of action.

The Committee notes that, in her 2018 report on her mission to Paraguay, the United Nations Special Rapporteur on contemporary forms of slavery commended the Government on the positive steps taken in the development of a legal and institutional framework in the country to combat modern forms of slavery and also emphasized as a positive development the greater awareness in society of the various forms of exploitation (A/HRC/39/52/Add.1, paragraph 18).

The Committee welcomes the efforts made by the Government to strengthen the institutional framework to combat forced labour and firmly encourages the Government to continue taking measures for the full implementation of the National Strategy for the prevention of forced labour and the Plan of Action for the prevention and eradication of forced labour in Paraguay 2017-19. The Committee requests the Government to provide information on the results achieved, including specific information on the roles assigned to the institutions responsible for its implementation, interinstitutional coordination mechanisms, the adoption of regional plans, the annual reports prepared by the Monitoring and Evaluation Commission and the diagnostic study on forced labour, including information on the factors that are identified as potential facilitators of forced labour. The Committee further requests the Government to provide information on the process of the development and adoption of the second National Strategy for the prevention of forced labour and encourages the Government to promote tripartite dialogue in its action to combat forced labour.

2. Exploitation of the labour of indigenous workers in the Chaco. For several years, the Committee has been urging the Government to take measures to bring an end to the economic exploitation, and particularly the debt bondage of indigenous workers in the Chaco region. The Committee has drawn attention to the need to reinforce the presence of the State in that region so as to be able to identify victims and carry out investigations of the complaints received. In this regard, the Committee previously noted the establishment of a Labour Office in the locality of Teniente Irala Fernández (central Chaco) and the recruitment of 30 labour inspectors at the national level, the establishment of new courts in the Chaco region (including labour tribunals) and of the subcommission of the Commission on Fundamental Labour Rights and the Prevention of Forced Labour in the Chaco region. The Committee observes that the Conference Committee also urged the Government to allocate sufficient material and human resources to the Ministry of Labour offices in the Chaco region to receive workers’ complaints and reports of forced labour and take appropriate measures to ensure that in practice victims are in a position to turn to the competent authorities.

In its report, the Government refers to the conclusion, in July 2017, of a Framework Interinstitutional Cooperation Agreement between the MTESS and the government of the Department of Boquerón with a view to the strengthening of the activities of the MTESS in the Chaco region in order to, inter alia, facilitate the access to information and complaint procedures for all members of indigenous peoples. Within this framework, the Office of the Labour Department for Indigenous Peoples was established in March 2018 in the city of Filadelfia, Department of Boquerón (Chaco). The Office has since been strengthened and offers an accessible complaints procedure for workers and is raising the awareness of indigenous peoples concerning their rights and providing them with advice. The Government also provides information on awareness-raising campaigns (“The Paraguayan Chaco with decent work”) and capacity-building workshops for the population of the Paraguayan Chaco on their labour rights in various languages (Spanish, Guaraní, Enxet, Sanapaná, Nivaclé, Ayoreo, Toba Qom, German and the Menonnite dialect), as well as for the private sector and public officials. The Government indicates that since 2018 it has been taking action to strengthen the Regional Office of the MTESS in the Chaco, including: the preparation of a list of public institutions in the three districts of the Boquerón (Filadelfia, Mariscal Estigarribia and Loma Plata) with which the Regional Office has constant relations, the development of a list of indigenous communities in each district; and the organization of the Office to receive, provide advice to and mediate between employers and workers. In the month of January 2019, a total of 117 persons received advice from the MTESS in the city of Filadelfia.

The Committee notes that, in its observations, the ITUC indicates that the Filadelfia Office does not have the minimum level of administrative resources necessary for its operation nor the independence to ascertain possible irregularities on site. The ITUC indicates that the Government has not provided information to workers’ organizations on the activities of the Office, the number of complaints received and the action taken on forced labour and other violations of labour rights. The CUT-A indicates that the Filadelfia Office does not have staff trained in “building a case” and gathering evidence, or in interviewing potential victims. The CUT-A adds that it does not have information on the outcome of any interventions that have been made, hence the ongoing lack of exemplary penalties.

The Committee notes that, in her report, the United Nations Special Rapporteur observes that, according to information received, cooperatives and ranches generally comply with the national legislation and there have been recent improvements in the level of compliance in the Chaco region. Nevertheless, she remains concerned at cases of forced and slave labour in smaller workplaces and more remote and less accessible ranches, and at labour practices that she views as exploitative (para. 50).

The Committee encourages the Government to intensify its efforts to facilitate the access of indigenous workers to administrative and judicial procedures to report situations of forced labour, taking into account their geographical location, linguistic and cultural situation and educational level. In this regard, the Committee requests the Government to continue taking measures to ensure the presence of inspectors in the most remote areas of the Chaco where indigenous workers are present, and to indicate the current number of inspectors covering the region and their geographical distribution, the number of inspections undertaken, complaints received and administrative and criminal penalties imposed, and the manner in which the Ministry of Labour cooperates with the Office of the Public Prosecutor and the police for the investigation of cases of forced labour. The Committee also requests the Government to indicate the measures taken to protect workers who have reported being the victims of forced labour and in providing them with support and assistance. It also requests it indicate the manner in which the MTESS collaborates with the Paraguay Indigenous Institute for the identification and action to address problems affecting the indigenous peoples of the Chaco which make them vulnerable to situations of forced labour.

3. Article 25. Application of penal sanctions. The Committee previously noted that persons who exact forced labour (debt bondage and other practices involving forced labour) have not been prosecuted or penalized. In the same way as the Conference Committee, the present Committee requested the Government to ensure that the criminal law contains sufficiently specific provisions adapted to national circumstances to enable the competent authorities to initiate criminal proceedings against the perpetrators of these practices. The Government indicates that a preliminary draft Bill has been prepared to criminalize forced labour and that it establishes a sentence of imprisonment of up to five years or a fine for any person “who through force or threats compels another person to perform work or provide a service, irrespective of whether or not it is paid”. The preliminary draft text contains a list of aggravating circumstances which carry a sentence of imprisonment of up to ten years. These circumstances include the fact of submitting the victim to a situation of slavery, servitude or degrading conditions that undermine their humanity or the victim being in a seriously defenceless or vulnerable situation. The Committee also notes the adoption of the Tripartite and Interinstitutional Guide on Intervention in Cases of Forced Labour, which contains indicators of forced labour and proposes intervention maps in cases of complaints of forced labour, from both a criminal and a labour perspective. The Guide makes it clear that in cases where there has been no complaint, but it is known that there is a situation of forced labour, the Office of the Public Prosecutor must take action at its own initiative.

The Committee observes that the penalty envisaged when there are no aggravating circumstances, that is a sentence of imprisonment of up to five years or a fine, is not sufficiently dissuasive. Indeed, the Committee has already indicated that “when the envisaged sanction consists of a fine or a very short prison sentence, […] it does not constitute an effective sanction in light of the seriousness of the violation and the fact that the sanctions need to be dissuasive” (2012 General Survey on the fundamental Conventions, paragraph 319). While welcoming the preparation of draft legislation criminalizing and penalizing forced labour, the Committee trusts that the Government will take the necessary measures to review the draft legislation to ensure that the exaction of forced labour is punishable by criminal penalties that are really effective and sufficiently dissuasive. The Committee trusts that the draft legislation will be adopted in the very near future and requests the Government to provide information on the awareness-raising and capacity-building activities undertaken to promote knowledge of the legislation and its use by the competent authorities. The Committee also once again requests the Government to provide information on the prosecutions initiated against persons who exact forced labour and their outcome.

Article 2(2)(c). Obligation to work imposed on non-convicted detainees. For several years, the Committee has been emphasizing the need to amend the Act on the prison system (Act No. 210 of 1970), under the terms of which prison labour shall be compulsory for persons subject to security measures in a prison (section 10 in conjunction with section 39). The Committee previously requested the Government to take measures to formally repeal these provisions of the Act. The Committee notes the Government’s indication that in 2017 a formal proposal was submitted for the repeal of section 39 of the Prison Act No. 210/70 in order to harmonize it with the provisions of the Convention. This proposal was submitted to the Office of the President of the Republic for referral to the National Congress. The proposal was sent back to the MTESS by the Office of the President accompanied by legal opinion No. AJ/2017/No. 1073 of 16 July 2018, with the recommendation to obtain the legal opinion of the Ministry of Justice concerning the draft text. The Committee urges the Government to continue taking the necessary measures for the prompt approval of the draft legislation repealing section 39 of Act No. 210/70 on the prison system and to provide information in this regard.

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