Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee notes that the amendments to the provisions of the Penal Code adopted in 2002 will enter into force in 2007.

Article 2, paragraphs 1 and (2)(c), of the Convention

1. Public interest work. The Committee has noted articles 37 to 39 of the Penal Code, which empower the courts to order, as a principal autonomous sanction, the performance of public interest work in place of a financial penalty of up to a maximum of 180 fine-days, where this appears more judicious in the particular case. Under section 37(1) of the Penal Code, offenders cannot be compelled to perform public interest work against their will, and under section 37(2), public interest work is unpaid work carried out for the benefit of social institutions, work having a public utility, or work for persons in need. The Committee has asked the Government to indicate the arrangements for carrying out public interest work for persons in need.

The Committee notes that, according to the Government, public interest work can be performed in retirement homes, foyers and charitable organizations. The Commission has previously noted, in relation to compulsory work for the refusal to perform military service, that the work performed by the compelled person must be in the public interest and, in cases where this work is performed in a private institution, it must have a public utility. The criteria for determining public utility are that gaining a benefit does not constitute the central purpose of the activity concerned and that the results do not advantage a small number or closed circle of beneficiaries. The Committee asks the Government to provide information concerning the criteria used by the authorities for determining the type of associations or institutions for the benefit of which work in the public interest can be performed, in order for the Committee to be assured of their non-profit making objectives. It also asks the Government to supply the list of establishments to which convicted persons can be assigned a public interest job.

2. Prisoners working in establishments managed by private concerns. In its previous direct request, the Committee recalled that work for private companies could be compatible with Article 2, paragraph 2(c), only where prisoners work in conditions approximating a free employment relationship. This necessarily requires the voluntary consent of the prisoner, as well as further guarantees and safeguards covering the essential elements of an employment relationship. In this regard, the Committee notes with interest that, under the terms of article 81 of the Penal Code, "where there is consent, a detainee may be engaged by a private employer".

In addition, the Committee notes article 379 of the Penal Code, according to which the cantons may entrust to establishments managed by private concerns the execution of sentences in the form of semi-detention or external work. The Committee asks the Government to indicate in its future reports the cases in which the execution of sentences are entrusted to private concerns and, in such cases, to supply information concerning the conditions and modalities of the performance of work by detainees in such a context.