Solicitud directa (CEACR) - Adopción: 2003, Publicación: 92ª reunión CIT (2004)

1. The Committee has noted the Government’s reply to its earlier comments. It has also noted the information supplied by the Government in reply to its 2000 general observation concerning measures to combat trafficking in human beings, and in particular, the elaboration of the draft Law against the illegal trafficking in human beings. The Committee would be grateful if the Government would provide a copy of this Law, as soon as it is adopted.

Article 2(2)(c) of the Convention. The Committee previously noted that section 61 of the Law on the Execution of Punishments allows prisoners to work for trading companies, other legal entities and individual proprietorships, under the conditions provided for by the Minister of Justice. In its latest report, the Government expresses the view that work exacted from prisoners in the course of detention must not be considered as forced or compulsory labour.

The Committee recalls in this connection that, under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely:

… that the said work or service is carried out under the supervision and control of a public authority; and that the said person is not hired to or placed at the disposal of private individuals, companies or associations.

The Committee has always made it clear that the two conditions are cumulative and apply independently; i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations (see paragraph 119 of the Committee’s General Report to the 89th Session of the International Labour Conference, 2001). As the Committee repeatedly pointed out, it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as wages and social security, etc. (ibid., paragraphs 128-143).

The Committee previously noted the Government’s statement in its report that performing labour is a right of prisoners, but it is not deemed obligatory. However, in its latest report the Government refers to the "existing element of obligation". The Committee requests the Government to clarify the situation, indicating clearly whether the work of prisoners is compulsory or not and supplying copies of relevant provisions, and more particularly, as regards the abovementioned section 61, how the voluntary consent of the prisoners to work for private employers is guaranteed, so that it is free from the menace of any penalty, including any loss of privileges or other disadvantages following from a refusal to work.

In the light of the above considerations, the Committee again requests the Government to describe the conditions in which work of prisoners for private employers takes place, including payment of normal wages, social security and observance of occupational safety and health legislation (e.g. through labour inspection), and indicate how those conditions are determined. Please supply copies of complete texts of the Law on the Execution of Punishments (together with the regulations on its application) and the Juvenile Delinquency Act, 1958, as amended. Please also communicate copies of any other texts issued by the Ministry of Justice concerning the conditions under which prisoners may work for private parties, to which reference is made in section 61(1) of the Law on the Execution of Punishments.

2. The Committee has noted the comments by the Confederation of the Independent Trade Unions of Bulgaria, transmitted by the Government with its report, alleging violations in the implementation of section 120 of the Labour Code (as amended in 1992) concerning a temporary transfer of a worker without his/her consent to another post in the same or another enterprise for a period of up to 45 calendar days during a year, with a possibility to assign a worker a job of a different nature without taking account of the worker’s qualifications, such a transfer being enforceable with disciplinary sanctions, including dismissal. The Committee requests the Government to refer to these allegations in its next report and to supply any available information on the application of section 120 in practice, describing the circumstances of such transfers, with particular emphasis on the conditions of work before and after a transfer has been carried out, and indicating sanctions imposed on workers in case of refusal.