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Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 29) sur le travail forcé, 1930 - Allemagne (Ratification: 1956)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Allemagne (Ratification: 2019)

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The Committee notes the observations sent by the Confederation of German Employers’ Associations (BDA) received on 22 September 2022.
Article 2(2)(c) of the Convention. Compulsory prison labour for private entities. The Committee previously noted that compulsory labour of convicted prisoners is provided for in the regulations for the execution of penal sanctions of the states (Länder) of Baden-Württemberg, Bavaria, Berlin, Bremen, Hamburg, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North Rhine-Westphalia, Saxony-Anhalt, Schleswig-Holstein and Thuringia. It also noted that in those Länder (except for Hamburg) inmates can be assigned to work in workshops run by private enterprises under the supervision of the penal authority. Except for Bremen, the state prison regulations did not specifically provide for the requirement to obtain the free, formal and informed consent of the inmates to work for private enterprises. In this respect, the Committee requested the Government to ensure that, both in law and in practice, the work performed by prisoners for private undertakings is based on their free, formal and informed consent and subject to conditions of work approximating a free labour relationship.
The Committee notes the detailed information provided by the Government on the situation of prison labour in the different Länder, which includes updated statistical data. It notes that, in general, the prison regulations of the Länder regulate the working time, holidays, occupational safety and health and remuneration of inmates who perform work. As regards the work of prisoners for private entities, the Government indicates that the legislation does not give private enterprises the exclusive authority to direct inmates, and that the supervision of prisoners and all decisions regarding their treatment must remain with prison staff. It adds that, in contractual agreements with private entities, the prison authority must ensure that prisoners are not fully integrated into the operations of the private enterprise. However, the Committee observes that the Government does not indicate how it is ensured that the free and informed consent of prisoners is formally obtained as a condition for their work for private enterprises in Baden-Württemberg, Bavaria, Berlin, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North Rhine-Westphalia, Saxony-Anhalt, Schleswig-Holstein and Thuringia. The Committee further notes that as of 2021, the number of prisoners working for private undertakings in such Länder was: 1,489 in Baden-Württemberg; 1,722 in Bavaria; 511 in Hesse; 24 in Mecklenburg-Vorpommern; 1,094 in Lower Saxony; 1,255 in North Rhine-Westphalia; 122 in Saxony-Anhalt; and 36 in Schleswig-Holstein. In Thuringia, 477 prisoners were assigned to work for municipal undertakings or private entities.
The Committee notes a decision of the German Constitutional Court adopted on 20 June 2023 in which the Court held that the remuneration fixed for inmates in Bavaria and North Rhine-Westphalia (which was equivalent to nine per cent of the average salary of all insured persons of the German pension insurance in the previous calendar year) was against the constitutional principle of resocialization which requires that work in the prison system receive appropriate recognition. The Court considered that the level of remuneration in the two Länder did not fit the purpose of prison labour which is to show the importance of gainful employment in society. While the Court recognized that, in fixing the remuneration for prisoners, consideration shall be made to prison costs, prisoners should be left with an appropriate amount of remuneration that gives them a tangible advantage compared to prisoners who do not work. The Court hence decided that the legislature of the two Länder must strive for a legal framework which ensures that the low remuneration is not perceived as part of the sentence to be served.
The Committee further notes that in its observations, the BDA indicates that the compulsory work of prisoners is imposed as a means of resocialization, and that prison authorities retain responsibility for prisoners and cannot transfer their custody to private entities. The BDA further indicates that, in practice, inmates cannot be sensibly employed by the State, so their employment in the private sector should be permissible provided that: (i) public authorities specify the conditions and intervene when infringements occur; and (ii) working conditions are not exploitative even though they could not attain the level of normal employment.
The Committee recalls once again that, by virtue of Article 2(2) of the Convention, the compulsory labour of convicted persons is not considered as forced labour when: (1) it is carried out under the supervision and control of a public authority; and (2) prisoners are not hired to or placed at the disposal of private individuals, companies or associations (this is not limited to work outside penitentiary establishments, but applies equally to workshops which may be operated by private undertakings inside prison premises). If either of the two conditions is not observed, the situation would fall within the scope of the Convention. At the same time, the Committee has considered that work by prisoners for private enterprises could be held to be compatible with the Convention when: (i) the prisoners concerned offer themselves voluntarily, by giving their free, formal (in writing) and informed consent to work for private enterprises; and (ii) when the conditions of work of prisoners approximate those of a free labour relationship.
Therefore, the Committee urges the Government to take the necessary measures to ensure that, both in law and practice, the work undertaken by prisoners for private enterprises (in Baden-Württemberg, Bavaria, Berlin, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North Rhine-Westphalia, Saxony-Anhalt, Schleswig-Holstein and Thuringia), including within prison premises, only takes place voluntarily on the basis of the free, formal and informed consent of the prisoners concerned, and under conditions approximating a free labour relationship. It also requests the Government to provide information on the impact of the decision of the Constitutional Court of 20 June 2023 in Bavaria and North Rhine-Westphalia as regards the remuneration of prisoners working for private entities. The Committee further requests the Government to provide information on the impact of the decision in the other Länder.
The Committee is raising other matters in a request addressed directly to the Government.
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