Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes a communication dated 3 September 2010, received from the Georgian Trade Union Confederation (GTUC), which contains comments on the application of the Convention by Georgia. It notes that this communication was transmitted to the Government, on 30 September 2010, for any comments it may wish to make on the matters raised therein. The Committee hopes that the Government will provide such comments with its next report, so as to enable the Committee to examine them at its next session.

Articles 1(1) and 2(1) of the Convention. Freedom of career members of the armed forces to leave their service. The Committee notes the provisions of section 21 of the Law on Status of Servicemen of 25 June 1998, and Presidential Decree No.609 on Statute of Military Service of 26 October 1998, communicated by the Government with its report, as well as the Government’s explanations concerning the resignation of career military officers and other career military personnel.

Article 2(2)(a). Compulsory military service. The Committee notes the Government’s statement in its report that military personnel is used for a work which is of purely military character. The Committee requests the Government to indicate, in its next report, what guarantees are provided to ensure that services exacted for military purposes are used for purely military ends.

Article 2(2)(c). Prison labour. The Committee notes the Government’s indications in the report that the new Imprisonment Code was adopted on 9 March 2010 and the Law on Imprisonment of 1999 has been repealed. The Government indicates that, according to section 110(3) of the new Code, convicted prisoners can be employed in public or private enterprises within the territory of a penitentiary institution. The Committee also notes the Government’s indications concerning conditions of work of convicted prisoners (occupational safety, hours of work and overtime work) (section 112 of the Code), as well as their wages, which is governed by the labour legislation (section 110(5) of the Code).

The Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to or placed at the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private employers, even under public supervision and control. In fact, under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to or placed at the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are applied cumulatively; that is the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations.

However, while Article 2(2)(c) of the Convention strictly prohibits that prisoners be hired to or placed at the disposal of private enterprises, the Committee has considered, as explained in paragraphs 59 and 60 of its General Survey of 2007 on the eradication of forced labour, that work for private enterprises can be compatible with Article 2(2)(c) only where prisoners voluntarily enter a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the informed, formal consent of the person concerned and, in the light of the circumstances of the consent, that is the basic obligation to perform prison labour, and other restrictions on the prisoner’s freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation, such as wages and social security. If the above conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved.

The Committee therefore hopes that, in the light of the above considerations, the Government will take the necessary measures in order to ensure that the work of prisoners for private enterprises, both inside and outside prison premises, is carried out only with their voluntary consent, such consent being free from the menace of any penalty, including the loss of rights or privileges. The Committee also requests the Government to supply a copy of the new Imprisonment Code referred to above, as well as sample copies of contracts concluded between private enterprises and penitentiary institutions concerning the work of convicted prisoners.

Articles 1(1), 2(1) and 25. Penal sanctions for the illegal exaction of forced or compulsory labour. Trafficking in persons. The Committee notes the information provided by the Government concerning the application in practice of sections 143¹ and 143² of the Criminal Code punishing human trafficking, including copies of the court decisions annexed to the Government’s report.

Referring to its earlier comments, the Committee notes the Government’s statement that, in accordance with Georgian legislation, all cases of the illegal exaction of forced or compulsory labour are considered as trafficking. The Government further states that, consequently, penal sanctions provided for in sections 143¹ and 143² of the Criminal Code concerning trafficking in persons are applied for all cases of the illegal exaction of forced or compulsory labour. While noting these indications, the Committee hopes that the Government will continue to provide, in its future reports, information on the application in practice of sections 143¹ and 143² referred to above, in relation to punishment of the illegal exaction of various forms of forced or compulsory labour, including those not necessarily connected with cross-border trafficking or with such means of coercion as restriction of the freedom of movement or retention of passports.