Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee has noted the information provided by the Government in reply to its earlier comments.

Freedom of persons in the service of the State to leave their employment.

1. In comments it has been making since 1985, the Committee has noted that under Legislative Decree No. 46 of 23 July 1974, amending section 364 of the Penal Code, a term of imprisonment from three to five years may be imposed for leaving or interrupting work as a member of the staff of any public administration, establishment or body or any authority of the public or mixed sector before resignation has been formally accepted by the competent authority; or evading obligations to serve the same authorities, whether the obligation derived from a mission, a scholarship or a study leave. Further, the personal goods and property of the person concerned may be confiscated. As the Committee repeatedly pointed out, referring also to paragraphs 67-73, of its 1979 General Survey on the abolition of forced labour, persons in the service of the state should have the right to leave the service on their own initiative within a reasonable period, either at specified intervals or with previous notice.

The Committee has noted the Government’s indications in its report concerning an exchange of letters with the Ministry of Justice regarding the possibility of amending the abovementioned Legislative Decree No. 46 of 1974. The Government also indicates that the Committee for Consultation and Tripartite Dialogue shall work on reviewing the draft decree amending the Penal Code so as to include amendments aimed at meeting this Committee’s observations concerning the resignation of state employees. The Committee trusts that the necessary measures will be taken without further delay to ensure, both in law and in practice, that persons in the service of the State are free to leave their employment within a reasonable period, and that the Government will provide information on the action taken.

2. Legislation on vagrancy. In comments it has been making since 1987, the Committee referred to section 597 of the Penal Code, which provides for the punishment of any person who is reduced to seeking public assistance or charity as a result of idleness, drunkenness or gambling. Referring to the explanations given in paragraphs 45-48, of its 1979 General Survey on the abolition of forced labour, the Committee recalls that while the punishment of gambling or the abuse of intoxicating liquor is outside the scope of the Convention, the possibility to impose penalties for mere refusal to work is contrary to the Convention.

Referring also to its observation under Convention No. 105, the Committee has noted the draft legislative decree amending the Penal Code, a copy of which has been supplied by the Government. It has noted that, although the draft provides for removal from the Code of such terms as "imprisonment with labour" or "temporary hard labour", it does not change the essence of section 597. The Committee hopes that the Government will be able to take the necessary measures with a view to clearly excluding from the legislation any possibility of compulsion to work, either by repealing section 597 or by limiting the scope of its provisions to persons engaging in illegal activities, so as to bring legislation and practice into conformity with the Convention. Pending such revision, the Committee once again requests the Government to provide samples of recent judgements applying section 597 of the Penal Code.

3. Article 2(2)(d) of the Convention. In comments it has been making since 1964, the Committee has pointed out that certain provisions of Decree No. 133 of 1952 with respect to compulsory labour, particularly those of Chapter I (compulsory labour for purposes of health, culture or construction) and sections 27 and 28 (national defence work, social services, road work, etc.) provide for the call up of inhabitants for periods of up to two months, in circumstances that go beyond the exception authorized by the Convention for "any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity ... and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population".

The Committee previously noted the Government’s indications in its reports that a legislative decree to replace Decree No. 133 of 1952 had been submitted to the competent authority. It has noted from the Government’s report received in 1999 that the Ministry of Defence was asked for information about the progress made in the adoption of the draft Civil Defence Law which was intended to repeal Decree No. 133 of 1952. The Committee has also noted the Government’s indication in its report received in 2000 that the Committee for Consultation and Tripartite Dialogue was about to work on the amendments to the various texts, including the abovementioned Decree, with a view to meeting the observations of the Committee of Experts.

The Committee trusts that the necessary measures will at last be taken to amend Legislative Decree No. 133 of 1952 so as to limit the possibility of exacting labour to situations of emergency as defined in the Convention, and that the Government will soon be in a position to report on the measures taken to this end, either through the adoption of the draft Civil Defence Law referred to above, or through some other action taken as a result of the deliberations of the Committee for Consultation and Tripartite Dialogue.