Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the last two reports submitted by the Government. In the first place, it wishes to come back to the issue of prison labour with a view to requesting clarifications from the Government on the applicable laws and regulations, and on certain aspects of prison labour for private associations. In the second place, the Committee wishes to be provided with details on another type of work to which detainees may be convicted, namely work of general interest referred to by the Government in its report of June 2000.

Article 1, paragraph 1, and Article 2, paragraph 2(c) of the Convention.  Prison Labour. The laws and regulations applicable. The Committee notes that in the past the Government has indicated that the competence of the territory of French Polynesia in relation to the regulation of prison labour has been transferred to the State by virtue of Act No. 94-499 of 21 June 1994, which makes penal procedure a State competence. The Committee also notes that in its previous comments it requested the Government to indicate the text implementing this Act.

The Committee notes that work by detainees is governed by the third part (decrees) of the Code of Criminal Procedure. In this respect, the Committee takes due note of the Government’s statement in its report of June 2000, that the relevant provisions in this respect have been reproduced with a view to their application in the overseas territories, in Decree No. 84-577 of 6 July 1984, applying the third part of the Code of Criminal Procedure in the overseas territories.

However, the Committee notes that there exists Decree No. 95-300 of 17 March 1995 amending the Code of Criminal Procedure (third part: decrees) applicable in the overseas territories and establishing implementing procedures in French Polynesia. This Decree, of which the introductory provisions refer to Decree No. 84-577, issues detailed regulations respecting work by detainees.

The Committee also notes Decree No. 98-1099 of 8 December 1998 amending the Code of Criminal Procedure (third part: decrees) respecting the organization and functioning of prison establishments. This text amends, among others, the provisions of the Code of Criminal Procedure respecting the rules for detention and work by detainees. The Committee also notes that this text refers explicitly, in its introductory provisions, to Act No. 94-499 transferring the competence of the territory of French Polynesia in respect of penal procedure to the State. However, the Committee notes that this Decree does not contain any explicit mention of its application in the territory of French Polynesia and, in this respect, contains no reference to Decree No. 95-300, nor to Decree No. 84-577.

The Committee therefore requests the Government to indicate which, of Decree No. 95-300 or Decree No. 98-1099, currently governs work by detainees on the territory of French Polynesia. If it is Decree No. 98-1099, the Committee requests the Government to indicate whether it repeals in whole or in part Decree No. 95-300 and, if it repeals the latter Decree in part, which provisions have been repealed. In the case that the provisions of Decree No. 98-1099 have been taken up in another text for their application in the territory of French Polynesia, the Committee requests the Government to provide a copy of the text in question.

While awaiting these clarifications, the Committee considers that it would already be useful to address certain aspects of a matter of substance which arises irrespective of the decree that is applicable, namely the issue of the employment of prisoners for private associations.

Prisoners working for private associations. The Committee recalls that, under the terms of Article 2, paragraph 2(c), prison labour is excluded from the scope of the Convention under the following conditions: (a) the work or service is a consequence of a conviction in a court of law; (b)  such work or service must be carried out under the supervision and control of a public authority; (c) the person must not be placed at the disposal of private individuals, companies or associations. With regard to this latter aspect, the Committee recalls that to be compatible with the Convention, work by prisoners for private associations must, firstly, be subject to the consent of the persons concerned given freely prior to any employment and free of the menace of any penalty and, secondly, such free consent must be corroborated by conditions of work (particularly in terms of wages and social security) approximating those of a free employment relationship.

The Committee recalls that under the terms of the two Decrees (section D.P. 103 in the case of the Decree of 1995 and D.103 for the Decree of 1998), work in prisons is performed principally under one of the three following systems: general service work (intended to carry out the various services and tasks required for the operation of the prison); the hiring of prison labour; and work under an agreement concluded between the prison administration and the national service responsible for work in penitentiaries. Furthermore, the Committee notes that convicts may be employed outside the prison under the supervision of prison personnel (section D.P. 126 et seq.in the case of the Decree of 1995 and section D.126 et seq. for the Decree of 1998). In this context, the Committee notes that work may be performed on the account, among others, "of an individual or an association". Finally, the Committee notes that "detainees may be authorized ..." to work on the account of "associations established with a view to preparing their social and vocational reintegration" (section D.P. 102 in the case of the Decree of 1995 and D. 101 for the Decree of 1998).

The Committee also notes the following information contained in the Government’s report of June 2000 and its reply to the general observation of 1998. Firstly, the hiring of prison labour within prisons has "concerned three individuals and came to an end in January 2000". Secondly, there are no prisons managed by private enterprises on the territory of French Polynesia. Finally, detainees who work outside the prison are employed by a municipal authority. The Committee also notes the Government’s general indication that prison labour, whether it is carried out within the prison or outside it, is optional for the detainee.

Free consent. In its observation of 2001 on the application of the Convention in Metropolitan France, the Committee noted that since the adoption of the Act of 22 June 1987 convicted persons are no longer in principle compelled to work. The Committee referred in this respect to section D.99(1) of the Code of Criminal Procedure as amended by Decree No. 98-1099. In the view of the Committee, and in the light of sections D.P. 98 and D.P. 99 of Decree No. 95-300, this principle is far from being reflected as clearly in the latter Decree. If this Decree is the applicable text, and while noting that according to the Government’s report the cases of work by prisoners for private associations are very limited in their numbers, the Committee requests the Government to indicate: (a) the manner in which in practice the free consent of prisoners is ensured for any work performed for the benefit of private associations or private persons, both within and outside the prison; and (b)  whether measures are envisaged to ensure that free consent is more clearly required by the applicable law and regulations on the territory of French Polynesia. In this respect, the Committee would be grateful if the Government would indicate whether progress has been achieved with a view to ensuring that an employment contract is concluded for all detainees working for a private enterprise in the context of the planned reforms of the prison administration, which were noted by the Committee in its direct request of 2001 concerning the application of the Convention in Metropolitan France.

Furthermore, the Committee wishes to refer to the comments that it made on sections 720(1) and 721(1) of the Code of Criminal Procedure in its direct request of 2001 on the application of the Convention in Metropolitan France. Under the terms of these two sections, which are also applicable on the territory of French Polynesia, a reduction of the sentence may depend on the work performed. As the Committee recalled on that occasion, the "menace of any penalty" referred to in the definition of forced labour contained in Article 2, paragraph 1, of the Convention does not necessarily have to take the form of a penal sanction. It may also consist of the loss of rights or privileges. The Committee emphasized on that occasion that the above provisions of the Code of Criminal Procedure call into question the principle of the consent of the prisoner being freely given in the case of work for private associations. The Committee therefore requests the Government to indicate whether measures have been taken to ensure that prisoners can give their consent freely to work for private associations without fear of being denied a reduction in their sentence.

Finally, the Committee requests the Government to provide practical information on the conditions under which a prisoner may request authorization to work for associations with a view to preparing her or his reintegration, and information on the associations concerned.

Conditions of employment approximating those of a free employment relationship. With regard to the conditions of employment, and more particularly of the remuneration of detainees, the Committee notes the general indication by the Government that such remuneration corresponds to the guaranteed inter-occupational minimum wage. The Committee also notes that the two Decrees Nos. 98-1099 and 95-300 provide that, aside from the deductions made by the prison, social contributions for health, maternity and old-age insurance are deducted at source. The Committee however requests the Government to indicate for each system of work, both outside and inside the prison: (a) the rate of remuneration applicable, compared to that applicable to free workers performing similar work; and (b) the level of net remuneration of detainees before any deductions made under the rules of the prison system.

Finally, with regard to the health and safety conditions in force for work by detainees, the Committee wishes to refer to its observation of 2001 on the application of the Convention in Metropolitan France. The Committee had noted with interest that, following its previous comments on this matter, Decree No. 98-1099 had amended section D. 109 of the Code of Criminal Procedure, thereby making applicable to work performed by detainees "the safety and health measures provided for by the Labour Code ...". If Decree No. 98-1099 governs prison labour on the territory of French Polynesia, the Committee requests the Government to provide information on the implementation of the above measures in the territory, and in particular on the intervention of the labour inspection services in this respect. If this is not the case and if Decree No. 95-300 is applicable, the Committee requests the Government to indicate the measures which have been taken or are envisaged to guarantee for detainees on the territory of French Polynesia occupational and health measures comparable to detainees in Metropolitan France. The Committee also requests the Government to provide information on the supervision of compliance with these measures.

Article 1, paragraph 1, and Article 2, paragraph 2(c) of the Convention. Work of general interest. The Committee notes, that according to the Government’s report of June 2000, work of general interest may be applied optionally to detainees in the territory of French Polynesia. Under the terms of the relevant provisions of the new Penal Code declared applicable to the territory of French Polynesia, the Committee notes that work of general interest is envisaged in the following cases:

(a)  Work of general interest imposed as a correctional penalty and as an alternative to imprisonment (sections 131-3, 131-8 and 131-9 of the new Penal Code) for offences punishable by a sentence of imprisonment; the Committee notes in this respect that, by virtue of section 131-4 of the new Penal Code, the scale of prison sentences is between six months and a maximum of ten years.

(b)  A suspended sentence conditional upon proof of good conduct and involving the obligation to perform work of general interest (sections 132-54 et seq. of the new Penal Code) applicable in the context of a conviction to a penalty of imprisonment of up to five years for a common law crime or offence (section 132-40 and 41); the Committee also notes the particular case of section 132-57, under which the jurisdiction has imposed "in the absence of the person charged" a sentence to imprisonment for up to six months and which cannot be appealed by the convicted person. In this specific case, the jurisdiction may impose a suspended sentence combined with the obligation to perform work of general interest.

The Committee notes that in all cases, work of general interest is defined as unpaid work (although section 132-54 is not explicit on this point) for a public association or an association. The Committee also notes that the duration of such work is between 40 and 240 hours and that, by virtue of section 131-22, the jurisdiction imposing the sentence of work of general interest is responsible for determining the period within which such work must be performed. Furthermore, the conditions for the execution of the obligation to perform work of general interest are decided upon by the sentencing judge (section 131-22) and the convicted person has to comply with certain supervisory measures (section 132-55). The Committee notes that, under the terms of section 131-23, the work of general interest is subject to the laws and regulations applicable with regard to night work, safety and health, and work by women and young persons. Finally, the Committee notes that it is clear from sections 131-8 and 132-54 that a sentence to perform work of general interest or a suspended sentence combined with the obligation to perform work of general interest cannot be imposed in the event of the refusal of the person concerned or in her or his absence from the hearing. However, no reference is made to the need for such consent in the particular case covered by section 132-57.

The Committee recalls that Article 2, paragraph 2(c), of the Convention excludes from its scope "... any work or service exacted from any person as a consequence of a conviction in a court of law, provided 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". Under the terms of the above sections of the new Penal Code, work of general interest is work required of a person by virtue of a conviction in a court of law. In order to establish that it does not constitute forced or compulsory labour, in accordance with Article 2, paragraph 2(c), the Committee has to ascertain that such work fulfils the two conditions laid down by this provision. In the view of the Committee, certain of the principles that it has recalled with regard to prison labour are also applicable to work of general interest. This is the case, firstly, of the cumulative nature of the two conditions laid down by the above provision: the fact that an individual remains constantly under the supervision and control of a public authority does not in itself dispense the Government from abiding by the second condition, namely that the person is not hired to or placed at the disposal of, among others, private associations, and vice versa. Furthermore, as indicated above, the Committee recalls that in order to be compatible with the Convention, work resulting from a conviction in a court of law which is performed for the benefit of a private association must be conditional upon the consent of the persons concerned freely given prior to any employment and without the menace of any penalty. Finally, as the Committee indicated in paragraph 125 of its General Report to the 89th Session of the ILC, the term "associations" in the Convention "would also cover non-profit-making associations".

Supervision and control of a public authority. In the light of the above provisions of the new Labour Code, the Committee notes that the public authorities intervene at several stages in the performance of work of general interest. However, the Committee requests the Government to indicate the public law associations for which a convict may perform work of general interest, over and above public communities. With regard to the performance of work of general interest for the benefit of an association, the Committee also requests the Government to indicate: (a) the precise conditions for the performance of work of general interest which are determined by the sentencing judge; (b) whether the association for which the convicted person will work intervenes in the determination of such conditions and on which elements it would intervene; (c) in what form the conditions are notified to the association; (d) whether, during the performance of the work, the sentencing judge supervises compliance with these conditions and how frequently; and (e) whether it is the responsibility of the sentencing judge to determine whether the work of general interest has duly been accomplished.

The Committee also notes that there is a procedure for the approval of the associations concerned. The Committee requests the Government to provide information on: (a) this approval procedure, and in particular the selected criteria for approval; and (b) the duration of such approval. The Committee also requests the Government to indicate whether verifications of compliance with any criteria for approval are carried out by the public authorities.

Finally, the Committee would be grateful if the Government would indicate whether the performance of work of general interest for a public law association, in addition to the role played by the sentencing judge in all circumstances, is carried out under the same conditions as for an association.

Work for the benefit of an association and free consent. The Committee notes that the consent of the prisoner is explicitly required in at least two cases. In the view of the Committee, one of the determining factors in the person concerned giving such consent could be the duration of the work of general interest to be performed instead of the sentence of imprisonment. The Committee requests the Government in this respect to indicate whether a specific duration of work of general interest is determined for each sentence of imprisonment by the implementing texts or whether it is left to the discretion of the competent jurisdiction. Furthermore, the Committee would be grateful if the Government would provide indications on the conditions under which a convicted person gives consent to perform work of general interest. The Committee therefore requests the Government to indicate: (a) whether, when the question is posed to the convicted person by the competent jurisdiction, she or he is informed of the duration of the sentence of imprisonment and of the work of general interest; (b) whether prior explanations are provided to the convicted person concerning the conditions for the performance of work of general interest, and particularly the nature of the work which may be performed and the entity for which it is to be carried out; and (c) whether the convicted person is granted a period of reflection to make the choice. With regard to the case covered by section 132-57 of the new Penal Code, the Committee requests the Government to indicate whether the consent of the convicted person is necessary and the conditions in which it is obtained.

Furthermore, the Committee requests the Government to provide the following practical information: (a) the number of cases of conviction to sentences of work of general interest (including cases in which proof of good conduct is required, combined with the obligation to perform work of general interest); (b) the sentences of imprisonment for which work of general interest is offered most frequently as an alternative; and (c) the nature and duration of the work performed. Finally, in general terms, the Committee requests the Government to provide any implementing text developing the above provisions of the new Penal Code on the territory of French Polynesia, and copies of judicial decisions imposing sentences of work of general interest.