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

The Committee notes the Government’s first and second reports, and the additional information supplied. It requests the Government to provide information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes that the National Council for the Family has embarked upon the preparation of a draft Code of Childhood and Adolescence. This draft Code includes a special section for the establishment of an appropriate legal framework for the implementation of the action taken by the Government for the prohibition and elimination of the worst forms of child labour. It requests the Government to provide information on the progress made in the preparation of the draft Code of Childhood and Adolescence.

Article 3. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children. The Committee notes that section 367 of the Penal Code provides that any person who, as a member of an international organization, engages in the sale of persons for any purpose is liable to a sentence of between four and eight years of imprisonment. If the sale is to the prejudice of children who are nationals of El Salvador, the sentence may be increased by three-quarters of the maximum penalty. The Committee also notes that section 367-B of the Penal Code, as added by Decree No. 210 of 25 November 2003, provides for a penalty for any person found guilty of the sale and trafficking of persons under 18 years of age for the purposes of sexual exploitation.

2. Slavery, debt bondage, serfdom and forced or compulsory labour. The Committee notes that article 4 of the Constitution provides that no person may be subjected to slavery or serfdom. It also notes that article 9 of the Constitution provides that no person may be compelled to perform work or provide personal services without fair recompense and without consent. Furthermore, section 13 of the Labour Code prohibits forced labour and defines it as any work or service which is exacted under the menace of a penalty and against the person’s will.

3. Forced or compulsory recruitment of children for use in armed conflict. The Committee notes that article 215(1) of the Constitution provides that military service is compulsory for all nationals of El Salvador from the ages of 18 to 30 years. But in the case of necessity, the article provides that all nationals of El Salvador are considered soldiers ready to perform military duties. It also notes that section 351-23 of the Family Code recognizes the right of minors not to be engaged in military service. Furthermore, section 2 of the Act of 1992 respecting military service and reserve armed forces provides that the Act applies to young persons between 16 and 18 years who enrol voluntarily, in accordance with the regulations. The Committee requests the Government to indicate whether the compulsory age of 18 years to enrol in military service, established by article 215(1) of the Constitution, also applies to situations of necessity provided for by this provision and for which all nationals of El Salvador are considered as soldiers ready to perform military duties.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that section 169 of the Penal Code provides that any person who incites, facilitates, encourages, finances or organizes, in any manner, the use of persons under 18 years of age in acts of a sexual or erotic nature, individually or in groups, in public or in private, is liable to a sentence of between three and eight years of imprisonment. The Committee also notes that section 170 of the Penal Code provides that any person, who causes, through coercion or abuse of a situation of need, the prostitution of another person or that person’s maintenance in that situation, is liable to a sentence of between six and 18 years of imprisonment. If the victim is a person under 18 years of age, the penalty may be increased by three-quarters of the maximum penalty.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that section 173 of the Penal Code, as amended by Decree No. 210 of 25 November 2003, provides that any person who produces, reproduces, distributes, publishes, imports, exports, offers, finances, sells, commercializes or disseminates, in any form, images or uses the voice of a person under 18 years of age, directly, by electronic, audiovisual or other means, which exhibits them in sexual activities, is liable to a sentence of imprisonment of from six to 12 years.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that sections 49-51 of the Act of 1991 respecting drug-related activities protects children against the consumption and trafficking of drugs. It also notes that sections 6, 8, 13, 16 and 17 of the Act of 1998 controlling the commercialization of substances or products of artisanal use which contain solvents in liquid form or which may be inhaled lays down measures of protection and rehabilitation relating to dependency by young persons on the consumption of drugs. The regulations of 1998 respecting narcotics, psychotropic substances, chemical substances and products also regulates the monitoring and inspection of the import, export, manufacture, cultivation, production, transport and distribution of drugs. The Committee observes that this legislation does not specifically prohibit the use, procuring or offering of a person under 18 years of age for the purposes of illicit activities, in particular for the production and trafficking of drugs. It therefore requests the Government to take the necessary measures as a matter of urgency to secure the specific prohibition of the use, procuring or offering of a child under 18 years of age for illicit activities, in particular for the production and trafficking of drugs, in accordance with Article 3(c) of the Convention, and to adopt appropriate sanctions. The Committee also requests the Government to provide information on any progress achieved in this respect.

Clause (d). Types of hazardous work. The Committee notes with interest that section 105 of the Labour Code prohibits work by persons under 18 years of age in hazardous and unhealthy types of work. It also notes that section 106(1) of the Labour Code provides that types of hazardous work are those which may cause the death or immediate and serious harm to the physical integrity of the worker. The dangers of these types of work may arise from their nature, the type of materials used, prepared or dispersed, the residues left by such materials, the handling of corrosive, inflammable or explosive substances, or the storage of these substances. Furthermore, section 107 of the Labour Code prohibits work by persons under 18 years of age in types of work which are harmful to their safety and morals, namely work in bars, canteens, billiard halls and other similar establishments. Finally, section 116(2) of the Labour Code prohibits young persons under 18 years of age from working at night.

Article 4, paragraph 1. Determination of the types of hazardous work. The Committee notes that section 106(2) of the Labour Code sets out a list of types of work considered to be hazardous. The following types of work may be mentioned by way of illustration: greasing, washing, servicing or repairing machines or mechanisms in movement; work involving the use of automatic, circular or bandsaws, blades or any other mechanical tool the operation of which requires precautions and special knowledge; underground work, work in mines and quarries; activities in which explosive, toxic or inflammable substances are used or prepared; construction, demolition, repair and restoration work; maritime work and the types of work specified in other laws. The Committee also notes that section 108 of the Labour Code defines unhealthy types of work as those in which the working conditions or the nature of the work may harm the health of workers; the harm may be caused by the type of materials used, prepared or dispersed, or by solid, liquid or gaseous residues. Section 108 provides the following examples: work involving a risk of poisoning during the handling of toxic substances or the materials from which they originate; any industrial operation releasing noxious gases, vapours or effusions; any operation the implementation of which gives rise to hazardous or noxious dust; and any unhealthy type of work specified in other laws. Furthermore, the Committee notes the information provided by the Government in its report that employers’ and workers’ organizations were consulted when the list of types of hazardous work was determined.

Article 4, paragraph 2. Identification of where the types of hazardous work exist. In its report, the Government indicates that the measures taken to identify the places in which the types of hazardous work determined are carried out include inspections in workplaces involving high risks for the health, safety or morals of children. By way of illustration, the Government refers to bars, restaurants, cafeterias and brothels. According to the Government, inspections form part of the duties of the country’s police authorities and are carried out in collaboration with the El Salvador Institute for the Protection of Young Persons (ISPM) and the National Family Council, resulting in the removal of a large number of girls and boys under 18 years of age from dangerous situations. Once removed, the young persons are placed with the ISPM, which ensures their rehabilitation and social integration in the community. While taking due note of the information provided by the Government, the Committee observes that the examples referred to by the Government in its report only concern the hotels and catering sector. It therefore requests the Government to indicate the measures adopted or envisaged to identify, in addition to the hotels and catering sector, the places in which the other types of hazardous work so determined exist. It also requests the Government to provide information on the results of inspections relating to the identification of places where types of hazardous work exist.

Article 4, paragraph 3. Periodical examination and revision of the list of types of hazardous work so determined. In its report, the Government indicates that the Department of Employment periodically examines the types of hazardous work determined under paragraph 1 of this Article. The Department of Employment is responsible for evaluating whether types of hazardous work are likely to prejudice the health, safety, morals and development of young persons. It also examines whether types of hazardous work are liable to prejudice school attendance by young persons or their participation in a programme of vocational guidance or training approved by the competent authority, namely the El Salvador Institute of Vocational Training (INSFORP), or to benefit from the instruction received. The Committee requests the Government to indicate whether the Department of Employment consults organizations of employers and workers during the periodic examination of types of hazardous work.

Article 6, paragraph 1. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s indication that in June 2001 it established the National Committee and the Technical Committee for the Elimination of Child Labour, the common objective of which is to implement a strategy for the elimination of the worst forms of child labour. The National Committee has prepared a National Programme of Action for the Elimination of the Worst Forms of Child Labour in El Salvador. The Committee requests the Government to provide information on the implementation of this National Programme of Action.

Article 6, paragraph 2. Consultation with government institutions, employers’ and workers’ organizations and other concerned groups. In its report, the Government indicates that the Ministry of Labour and Social Insurance acts as coordinator between ILO/IPEC, the various NGOs and other governmental organizations which collaborate in the formulation and implementation of programmes of action for the elimination of the worst forms of child labour. It adds that close communication with employers’ and workers’ organizations is maintained, in accordance with the provisions of this Article.

Article 7, paragraph 1. Penalties. The Committee notes that the Penal Code provides for penalties for: deprivation of liberty, setting a penalty of between three and six years of imprisonment (section 148); the encouragement and incitation to prostitution of young persons under 18 years of age, establishing a penalty of between two and four years of imprisonment (section 169); the encouragement of prostitution through coercion, with a penalty of between one and two years of imprisonment, which may be supplemented by a fine of between 50 and 100 days or, where the victim is a person under 18 years of age, a sentence of between two and four years of imprisonment (section 170); the sale, distribution or exhibition of pornography involving young persons under 18 years of age, for which it imposes a sentence of between six months and two years of imprisonment (section 172); and exhibitionist or pornographic performances, establishing a sentence of between six months and two years of imprisonment and a fine of between 30 and 70 days (section 173); and the illegal sale and trafficking of young persons, imposing a sentence of between four and eight years of imprisonment (section 367A). It also notes that the Labour Code provides for administrative sanctions for violations of the provisions of Books I, II and III, which contain provisions respecting types of hazardous work for young persons, for which it establishes a fine of up to 500 colones for each offence (section 627). The Committee requests the Government to provide information on the manner in which these penalties are applied in practice in relation to the worst forms of child labour.

The Committee notes that no penalty is envisaged for the following worst forms of child labour: the use of young persons under 18 years of age in armed conflict and the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. It therefore requests the Government to indicate whether the national legislation contains provisions for this purpose.

Article 7, paragraph 2. Effective and time-bound measures. The Committee notes with interest that El Salvador is one of the first three countries to participate in the ILO/IPEC Time-Bound Programme (TBP) on the worst forms of child labour. It also notes that, according to the document entitled "Combating the worst forms of child labour in El Salvador (2002-05)", the programme will benefit directly around 9,300 children, as well as 16,780 of their brothers and sisters under 18 years of age and 5,050 families in the regions concerned in the country.

Clause (a). Preventing the engagement of children in the worst forms of child labour. The Committee notes that, according to the above document, the number of girls, boys and young persons concerned by the programme of action for each sector or activity is: 1,000 for child labour in refuse dumps; 1,600 out of a total of the 2,200 children working in the firework industry; 5,000 out of a total of 11,300 children working in sugar cane plantations; and 3,100 out of a total of 10,200 children working in the fishing industry. The Committee also requests the Government to provide statistical data on the number of children who are effectively prevented from being engaged in the worst forms of child labour as a result of the implementation of the TBP.

Clause (b). Assistance for the removal of children from the worst forms of child labour. The Committee notes with interest that, according to the information contained in the above document, economic alternatives for the families of children engaged in the worst forms of child labour are envisaged so as to remove them from their work. It also notes that measures are taken for the rehabilitation and social integration of children removed from the sectors and activities concerned. The Committee requests the Government to provide information on the economic alternatives and on the measures taken to secure the rehabilitation and social integration of the children concerned. It further requests the Government to provide statistical data on the number of children who are actually removed from work.

Clause (e). Special situation of girls. The Committee notes the figures contained in the document "Combating the worst forms of child labour in El Salvador (2002-2005)" concerning the number of girls engaged in the worst forms of child labour covered by the TBP. According to these figures: (1) of the 1,000 children working in refuse dumps, between 40 and 47 per cent are girls; (2) of the total number of 2,200 children working in the firework industry in the country, 40 per cent are girls; (3) of the total number of 11,300 children working in sugar cane plantations, 13 per cent are girls; and (4) of the total number of 10,200 children working in the fishing sector, 31 per cent are girls. The Committee accordingly requests the Government to indicate the manner in which it intends to take account of the special situation of girls and remove them from the worst forms of child labour.

The Committee also notes the information provided by the Government to the effect that the National Family Council and the ISPM are under the obligation to: adopt rapid and time-bound measures to prevent children being engaged in the worst forms of child labour; provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration; ensure access to free basic education and vocational training; identify and reach out to children at special risk; and take account of the special situation of girls. The Committee requests the Government to provide information on the measures taken by the National Family Council and the ISPM in accordance with Article 7, paragraph 2(a) to (e), of the Convention.

Article 7, paragraph 3. Designation of the competent authority responsible for the implementation of the provisions giving effect to the Convention. The Committee notes the Government’s indication that the Ministry of Labour and Social Insurance, through the Directorate of International Labour Relations and, more specifically, the Ministry for Programmes of Action for the Elimination of Child Labour, the Unit for Women and Children, INSAFORP, and the National Family Council, are the competent authorities responsible for the implementation of the provisions giving effect to the Convention. It requests the Government to provide information on the methods by which such implementation is supervised.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes that El Salvador is a member of Interpol, the organization which assists cooperation between countries in the various regions, particularly to combat the trafficking of children. It also notes that El Salvador is collaborating with the World Bank, the Inter-American Development Bank and UNICEF in an educational reform project. Furthermore, according to the information available to the Office, the Government is collaborating with the countries of Central America and with Panama and the Dominican Republic in activities for the prevention and elimination of the commercial sexual exploitation of girls, boys and young persons. The Committee encourages the Government to continue cooperating with other countries and requests it to provide information on enhanced international cooperation and assistance, including support for social and economic development, poverty eradication programmes and universal education.

Part III of the report form. Court decisions. In its report, the Government indicates that courts of law and other tribunals have not handed down any decisions or rulings involving questions of principle relating to the application of Convention No. 182. If the courts issue any such decisions, the Committee requests the Government to provide copies thereof.

Parts IV and V. Application of the Convention in practice. The Committee notes that, in view of the figures contained in the document "Combating the worst forms of child labour in El Salvador (2002-05)", a fairly high number of children engaged in the worst forms of child labour are not covered by the TBP. It requests the Governmentto indicate whether it intends taking measures to establish programmes for the removal of these children from their work. The Committee also requests the Government to continue providing statistics and information on the nature, extent and trends of the worst forms of child labour, and particularly on the number of children who are at risk of being used or procured for the production of pornography or pornographic performances and for illicit activities, in particular the production and trafficking of drugs. It further requests the Government to provide information on the number of children covered by the measures giving effect to the Convention, the number and nature of the infringements reported, investigations, prosecutions, convictions and penalties. To the extent possible, all information provided should be disaggregated by sex.