Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the Government’s first report and requests it to provide information on the following points.

Article 3 of the Convention. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children for sexual exploitation. The Committee notes that Spain has ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol to the United Nations Convention against Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. The Committee notes that section 318bis(1) of the Penal Code, as amended by Act No. 11 of 29 September 2003, provides for a penalty for any person who, directly or indirectly, causes, collaborates in or facilitates the "illicit trafficking or clandestine immigration of persons" from Spain, in transit through the country or as a destination. Section 318bis(2) provides for a more severe penalty where the "illicit trafficking or clandestine immigration" is for the sexual exploitation of persons. Furthermore, section 318bis(3) also provides for a more severe penalty if the victim is a minor, or in other words a person under 18 years of age. Section 515(6) of the Penal Code also provides that illicit associations shall be liable where they cause the "illicit trafficking of persons". The Committee notes that the terminology used in section 318bis and 515 of the Penal Codes lends itself to confusion. Section 318bis(1) and (2) refer to "illicit trafficking or clandestine immigration" and section 515(6) to "illicit trafficking", whereas Article 3(a) of the Convention covers the sale and trafficking of children under 18 years of age, among other reasons for sexual exploitation. The Committee therefore requests the Government to indicate whether the terms used in sections 318bis and 515 of the Penal Code also apply to the sale and trafficking of young persons under 18 years of age for sexual exploitation.

2. Sale and trafficking of children for economic exploitation. The Committee further observes that the national legislation does not appear to contain provisions prohibiting the sale and trafficking of children for economic exploitation. It reminds the Government that Article 3(a) of the Convention also covers the sale and trafficking of young persons under 18 years of age for this purpose. The Committee therefore requests the Government to provide information on the measures adopted or envisaged to secure the prohibition of the sale and trafficking of young persons under 18 years of age for economic exploitation, and to adopt appropriate penalties.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes that Spain has ratified the Optional Protocol to the Convention on the Rights of the Child on children in armed conflict. Under section 12.1 of Act No. 13/1991 of 20 December respecting military service and section 26 of Decree No. 1107/1993 of 9 July approving the regulations on recruitment, the age for the commencement of military service is 19 years. However, under section 26(a) of Decree No. 1107/1993, this age may be lowered to 18 years.

Clause (b). 1. Use, procuring or offering of a child for prostitution. Under section 187.1 of the Penal Code, as amended by Act No. 11 of 29 September 2003, any person who incites, causes, collaborates in or facilitates the prostitution of a young person commits a criminal offence. Section 188.3 of the Penal Code, as amended by Act No. 11 of 29 September 2003, provides for a penalty for any person who, through recourse through violence, intimidation or deception, initiates or maintains a young person in a situation of prostitution.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. Section 189.1(a) of the Penal Code, as amended by Act No. 11 of 29 September 2003, provides for a penalty for any person who uses young persons for the purposes of or in exhibitionist or pornographic performances, both public and private, or to produce pornography of any type or who finances such activities. Under section 189.2 of the Penal Code, a more severe penalty is provided for where any person found guilty of the crime set out in section 1 belongs to an organization or association engaged in this type of activity.

Clause (c). Use, procuring or offering of a child for illicit activities. Section 368 of the Penal Code provides for a penalty for any person found guilty of encouraging, preparing or undertaking the trafficking of or, in any manner whatsoever, causing or collaborating in or facilitating the illegal consumption of toxic drugs, narcotics or psychotropic substances, or of being in possession of such substances for this purpose. Under section 369.9 of the Penal Code, a more severe penalty shall be imposed upon persons found guilty of making use of a young person under 16 years of age to commit the offence indicated in section 368. The Committee recalls that, under Articles 1 and 3(c) of the Convention, the prohibition of the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, as defined in the relevant international treaties, applies to young persons under 18 years of age. The Committee therefore requests the Government to take the necessary measures to ensure that section 369.9 of the Penal Code is amended so that it applies to young persons under 18 years of age.

Clause (d). Hazardous work. The Committee notes that section 6.2 of the Act respecting the conditions of employment of workers of 1995, prohibits workers under 18 years of age from carrying out night work or activities determined by the Government to be unhealthy, arduous, harmful or hazardous both for their health and for their vocational and human development, upon the proposal of the Ministry of Labour and Social Security, and after consulting the most representative trade union organizations. It also notes that section 6.3 of the Act on the conditions of employment of workers prohibits workers under 18 years of age from working overtime.

Article 4, paragraphs 1 and 3. Determination and revision of the list of the types of hazardous work. The Committee notes the information provided by the Government that the Decree of 26 July 1957 includes a list of types of hazardous work for young persons under 18 years of age. Section 1 of the Decree provides that, among other activities, it is prohibited to employ young persons under 18 years of age on: (a) the activities and in the industries enumerated in the list annexed to the Decree; (b) greasing, cleaning, examining and repairing machines or mechanisms of a hazardous nature while they are in operation; (c) the operation of presses, chisels, band and circular saws, mechanical drills and, in general, any machine which uses tools or which, at an excessive working speed, represents  a clear danger of accidents; (d) work carried on at over 4 metres of height from the ground or the floor; (e) any type of work that is not adapted to the health of the workers by reason of the excessive physical exercise involved or possible harmful effects; and (f) transporting, pushing or dragging loads of a weight requiring much strength.

The Committee notes that the Decree containing the list of types of hazardous work referred to above was adopted in 1957, well before the adoption of the Convention. It draws the Government’s attention to Article 4, paragraph 3, of the Convention, which provides that the list of the types of work determined must be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned. The Committee requests the Government to provide information on the measures adopted or envisaged for the revision, as necessary, of the list of types of hazardous work determined, and on the consultations held on this subject with the organizations of employers and workers concerned.

Article 4, paragraph 2. Identificaiton of where the types of hazardous work exist. The Committee notes that the Government has not provided any information in relation to this paragraph. It requests the Government to take the necessary measures to identify, after consultation with the organizations of employers and workers concerned, where the types of hazardous work exist and to report on the outcome.

Article 5. Monitoring mechanisms. 1. Ministry of Justice, services for the administration of justice and the central juvenile judge. In its report, the Government indicates that, in penal matters, supervision and monitoring of the protection of children is the responsibility of the Ministry of Justice, through the services for the administration of justice and the central juvenile judge of the national court. It requests the Government to provide information on the procedures adopted by the Ministry of Justice, the services for the administration of justice and/or the central juvenile judge for young persons of the national court for the effective implementation and enforcement of the provisions of the Penal Code giving effect to the Convention.

2. Labour and social security inspectorate. In the field of labour, sections 7 to 9 of Act No. 31/1995 of 8 November respecting the prevention of occupational risks issues regulations governing the procedures for the relevant public administration in this field. The labour and social security inspectorate is responsible for the supervision and enforcement of labour standards relating to young persons, and its responsibilities and functions are established by Act No. 42/1997 of 14 November. The labour and social security inspectorate is responsible, among other matters, for verifying: (a) the age of admission to employment; (b) whether the activities carried out by young persons are prohibited for young persons between 16 and 18 years of age, namely hazardous types of work; and (c) whether young persons under 18 years of age work at night or perform overtime hours. Labour and social security inspectors are authorize to: (a) enter workplaces freely and at any time; (b) undertake any investigation or examination of proof that they consider necessary to ascertain compliance with the legal provisions relating to labour; and (c) take various measures, such as ordering the immediate cessation of work or activities due to failure to apply occupational health and safety standards to workers. The Committee requests the Government to provide information on the activities of the inspection services and extracts from reports indicating the nature of violations relating to young persons under 18 years of age engaged in the worst forms of child labour.

Article 6, paragraphs 1 and 2. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s indication that the General Secretariat of Social Affairs of the Ministry of Labour, through the General Directorate of Social Action for Young Persons and the Family, is responsible for the formulation of programmes for the protection of children. A Programme for the prevention and protection of children against ill treatment and work was developed for the first time in 1997. This Programme is based on a "research-action" methodology, the objective of which is to assist the young persons for whom, by reason of their age, work is more hazardous for their development, and also those working in the family context. The Committee notes that the Government established several programmes of action with this objective in 2002. The Committee requests the Government to provide information on the activities and results achieved by the programmes of action with have been established, particularly with regard to the elimination of the worst forms of child labour. It also requests the Government to provide information on the consultations held with employers’ and workers’ organizations with a view to the adoption of programmes of action, and also to indicate the extent to which the views of other concerned groups have been  taken into consideration.

Article 7, paragraph 1. Penalties. The Committee notes that section 318bis of the Penal Code provides for a sentence of between four and eight years of imprisonment for any person who, directly or indirectly, initiates, collaborates in or facilitates the illicit trafficking or clandestine immigration of persons. This penalty is between five and ten years of imprisonment where the objective of the illicit trafficking or clandestine immigration is the commercial sexual exploitation of person. Furthermore, the sentence is increased by half again where the victim is a young person. It also notes that sections 517 and 518 of the Penal Code provide for penalties of between one and three years of imprisonment and a fine of between 12 and 14 monthly wages for illicit associations which initiate the illicit trafficking of persons. Under section 187.1 of the Penal Code, any person who causes the prostitution of a young person is liable to a sentence of between one and four years of imprisonment and a fine of between 12 and 24 monthly wages. Section 188.3 of the Penal Code provides for a sentence of between two and four years of imprisonment and a fine of between 12 and 24 monthly wages for any person found guilty of having recourse to violence, intimidation or deception with a view to initiating a young person in prostitution or maintaining her or him in this situation. Moreover, section 189.1(a) of the Penal Code provides for a penalty of between one and three years of imprisonment for any person who uses young persons for the purposes of or in exhibitionist or in pornographic performances, or to produce pornography, or who finances this type of activity. The Committee notes that sections 368 and 369 of the Penal Code provide for a sentence of detention of a higher level of between six months and 20 years of imprisonment and a quadruple fine for any person found guilty of using a young person under 16 years of age to cultivate, prepare, traffic or cause, in any manner whatsoever, or collaborate in or facilitate the illegal consumption of toxic drugs, narcotics or psychotropic substances, or of being in possession of such substances. With regard to types of hazardous work, section 8.4 of Legislative Decree No. 5/2000 of 4 August approving the amended text of the Act respecting social violations and penalties provides that the violation of norms contained in the labour legislation respecting work by young persons constitutes a very serious offence. According to the Government’s information, the penalty imposed is a fine of between 3,500.07 and 90,151.82 euros. Furthermore, section 13.2 of Decree No. 5/2000 provides that failure to comply with specific standards respecting the protection of the health and safety of young persons also constitutes a grave offence. According to the Government, penalty imposed is a fine of between 60,050.61 and 601,012.10 euros. The Committee requests the Government to provide information on the application of these penalties in practice.

Article 7, paragraph 2. Effective and time-bound measures. Clause (b). Assistance for the removal of children from the worst forms of child labour. While noting that the national legislation contains certain provisions giving effect to the Convention on this point, the Committee however notes that, in its concluding observations on the Government’s second periodic report in June 2002 (CRC/C/15/Add.185, paragraphs 49 and 50), the Committee on the Rights of the Child expressed its concern at reports of child prostitution in the suburbs of large cities and in holiday resorts involving vulnerable children living on the fringes of society. The Committee on the Rights of the Child recommended the Government to: (a) protect all persons under 18 from all forms of sexual exploitation, even when children have consented, under pressure of money, threats or, allegedly, "freely" to such acts; (b) organize campaigns for protection against sexual abuse, prostitution and child pornography; and (c) implement the National plan of action against the commercial sexual exploitation of children (2002-03). The Committee requests the Government to provide information on the effect given to the recommendations made by the Committee on the Rights of the Child for the protection of young persons under 18 years of age against commercial sexual exploitation. It also requests the Government to provide a copy of the National plan of action against the commercial sexual exploitation of children (2002-03), as well as information on its implementation and the results achieved, particularly with regard to the rehabilitation and social integration of child victims of prostitution.

Clause (c). Ensure access to free basic education and vocational training for all children removed from the worst forms of child labour.  The Committee notes that the Overall plan for Spanish cooperation (2001-04) sets the objective of providing universal basic schooling by 2015 and providing basic social services and assistance for the most underprivileged. It requests the Government to provide information on the impact of the plan to ensure access to free basic education and vocational training for all children removed from the worst forms of child labour.

Clause (d). Identification of children at special risk. Children of migrant families. The Committee notes the information provided by the Government that the social changes which have occurred in Spanish society, principally due to migration movements, require special attention to be paid to education so as to prevent and resolve problems of social exclusion, discrimination, racism, failure at school and absenteeism, all of which have a greater impact on persons in a disadvantaged social, cultural, economic, personal and family situations. The Committee considers, in the same way as the Government, that the children of migrant families are at special risk, particularly of being engaged in one of the worst forms of child labour. It therefore requests the Government to provide information on the measures adopted to ensure that the children of migrant families can attend school without problems of social exclusion and, accordingly, are not engaged in one of the worst forms of child labour.

Article 8. Enhanced international cooperation and/or assistance. 1. International cooperation. The Committee notes that Spain has been contributing to the ILO/IPEC programme since 1996. It also notes the Government’s indication that the Spanish International Cooperation Agency (AECI) has developed important action for children and young persons, both through bilateral and international measures, and in collaboration with the supranational institutions of the United Nations. Finally, the Committee notes that Spain is a member of Interpol, the organization which assists in cooperation between countries in the various regions, particularly to combat the trafficking of children.

2. Measures to combat poverty. The Committee notes that, according to the Government, its international development cooperation policy accords special attention to the protection of boys, girls and young persons. Section 7 of Act No. 23/98 respecting international development cooperation provides that the Spanish development policy, with its objective of combating poverty, shall endeavour to defend the most vulnerable groups of the population, including young persons, with special emphasis on the elimination of the economic exploitation of children, refugees, indigenous persons and minorities. The Committee requests the Government to provide information on the impact of its international development cooperation policy on the elimination of the worst forms of child labour.

3. Extra-territorial offences. The Committee notes that section 190 of the Penal Code provides for the prosecution of Spanish nationals and residents of Spain if they commit an offence in another country relating to the commercial sexual exploitation of children. Sentences handed down by foreign courts relating to offences of prostitution and the corruption of young persons may accordingly be executed in Spain. The Committee requests the Government to indicate whether section 190 of the Penal Code has already been applied and, if so, to indicate the country concerned.

Part III of the report form. Decisions involving questions of principle relating to the worst forms of child labour. The Committee notes the Government’s information that certain courts have handed down sentences relating to child labour. For example, Ruling No. 2500/2001 by the Supreme Court of Justice of Catalonia of 16 March provides that, taking into account the age of the young victim, namely 16 years, and the dangerous nature of the machine, the necessary safety measures had not been taken. The Committee requests the Government to continue providing information on the decisions handed down by courts of law which involve questions of principle relating to the application of the Convention.

Parts IV and V. Application of the Convention in practice. The Committee notes from the reports of the labour and social security inspection services that, of the 357,089 inspections carried out in 2000, a total of 46 offences were reported relating to the protection of the health and safety of young persons under 18 years, affecting 59 workers; of the 370,824 inspections carried out in 2001, some 52 offences were reported relating to the protection of the health and safety of young persons under 18 years of age, affecting 65 workers; and that, of the 380,194 inspections carried out in 2002, some 58 offences were reported relating to the protection of the health and safety of young persons under 18 years of age, concerning 74 workers. The Committee notes that these statistics do not specifically concern the worst forms of child labour. It therefore requests the Government to provide statistics and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penalties. To the extent possible, all information provided should be disaggregated by sex.