Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Forced Labour Convention, 1930 (No. 29) - Azerbaijan (Ratification: 1992)

Articles 1(1) and 2(1) of the Convention. Provisions concerning vagrancy. In its earlier comments, the Committee noted that, in spite of the fact that the Criminal Code of 2000 contains no provision concerning vagrancy (which was punishable under the old Criminal Code), vagrancy is still punishable under section 307.1 of the Code of Administrative Offences, which provides that, under certain conditions, the persons concerned may be taken into administrative custody for a term of up to ten days. It has also noted the Government’s repeated indications in its reports, including the latest report received in 2010, that section 307.1 is applicable to persons without a definite place of living nor means of subsistence, who do not have employment (without having an official status of the unemployed) and gain their income by pilfering or mendicancy.

While noting these indications, the Committee points out once again that section 307.1 is worded in such general terms as to lend itself to application as a means of indirect compulsion to work. The Committee again draws the Government’s attention to the explanations in paragraph 88 of its 2007 General Survey on the eradication of forced labour, where it has considered that the provisions imposing penalties for mere refusal to work are contrary to the Convention and should be either repealed or amended so as to limit their scope to unlawful activities.

The Committee reiterates its hope that the necessary measures will be taken with a view to clearly excluding from the legislation any possibility of compulsion to work, for example, by limiting the scope of section 307.1 of the Code of Administrative Offences to persons engaging in illegal activities (pilfering, etc.), so as to bring the legislation into conformity with the Convention. Pending the adoption of such measures, and noting also the Government’s indications concerning the meaning of “vagrancy” in section 307.1, the Committee requests the Government to supply information on the application of this provision in practice, including copies of any court decisions which could define or illustrate its scope.

Article 2(2)(a). Work exacted under compulsory military service laws for non-military purposes. In its earlier comments, the Committee referred to section 9(1) of the Act on the Status of Military Personnel, 1991, under which military servicemen, during the period of their service, may be made to perform work or other tasks not related to military service, in accordance with the procedure laid down by the President of the Azerbaijan Republic. The Committee has noted the Government’s repeated statement in its reports, that the armed forces may be called upon to fulfil duties which do not relate to their direct obligations, following the decision of Parliament and at the request of the President of the Republic, for example, during the state of emergency.

In its latest report received in 2010, the Government confirms its previous indication that the abovementioned provisions have not been applied in practice. The Government also reiterates its view that such provisions are not in contradiction with the Convention and the Constitution of the Republic of Azerbaijan, which allow the exaction of compulsory work or service under compulsory military service laws and in cases of emergency.

While noting these indications, the Committee recalls once again that Article 2(2)(a) of the Convention excludes work or service exacted by virtue of compulsory military service laws from the prohibition of forced labour only if such work or service is of a purely military character. The Committee again draws the Government’s attention to the explanations in paragraphs 43–46 of its 2007 General Survey on the eradication of forced labour, in which it pointed out that the use of conscripts for non-military purposes may be permitted only in cases of emergency, as defined in the Convention. It may be also mentioned in this connection that the provisions of the Convention relating to compulsory military service do not apply to career military servicemen, and the Convention consequently is not opposed to the performance of non-military work by persons serving in the armed forces on a voluntary basis.

In light of the above considerations, the Committee reiterates its hope that measures will be taken, for example, on the occasion of a possible future revision of the legislation, to indicate clearly that conscripts undergoing compulsory military service may be used only for purely military ends, with the exception of emergency situations. Pending the revision, the Committee again requests the Government to provide any information on the application of the abovementioned section 9(1) in practice, if and when such information becomes available.

Article 2(2)(c). Work of prisoners for private enterprises. In its earlier comments, the Committee referred to section 95.1 of the Code on the Execution of Penal Sentences (2000), under which every convicted person is under an obligation to work, such work being exacted from convicts either at enterprises and workshops of the penitentiary institutions or at other enterprises, outside the penitentiary institution, including private enterprises. As regards conditions of work of convicted persons, the Committee previously noted that they are governed by the general labour legislation and may be considered as approximating those of a free labour relationship, including remuneration and social security rights. It also notes the Government’s further clarifications concerning prisoners’ conditions of work provided by the Government in its 2010 report. The Committee has also noted the Government’s repeated indication in its reports that the work of convicts at enterprises outside the penitentiary institution is carried out under the supervision of the Ministry of Justice.

While noting these indications, the Committee again draws the Government’s attention to the provisions of Article 2(2)(c) of the Convention, which 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. However, the Committee has considered, as explained in paragraphs 59 and 60 of its 2007 General Survey 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 formal consent of the person concerned and, in 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.

While noting that, under the Code on the Execution of Penal Sentences, prisoners’ conditions of work may be considered as approximating those of a free labour relationship, the Committee observes that, under the legislation in force, the formal consent of prisoners to work for private enterprises does not appear to be asked for.

The Committee therefore reiterates its hope that, in light of the above considerations, the Government will take the necessary measures in order to ensure that, both in legislation and in practice, the work of prisoners for private enterprises will be carried out only with their voluntary and informed 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 sample copies of contracts concluded between a private enterprise and a penitentiary institution concerning the work of convicted prisoners.

Article 2(2)(d). Legislation concerning emergency situations. While having noted the Government’s repeated indication in its reports that the relevant provisions have not been applied in practice during the reporting period, the Committee again requests the Government to supply, with its next reports, a copy of the Law on the State of Emergency, which was adopted and entered into force in 2004.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. Referring to its earlier comments, the Committee notes the establishment of the Centre of assistance to victims of trafficking in persons, by the Decree of the Ministry of Labour and Social Protection of 22 January 2007, as well as the Government’s brief indications, including statistics, concerning the practical functioning of the Centre, in accordance with the provisions of the Regulations on Social Rehabilitation of the Human Trafficking Victims (of 6 March 2006, No. 62).

While noting these indications, the Committee again requests the Government to provide information on the penal proceedings which have been instituted under section 144-1 of the Criminal Code and on the penalties imposed on perpetrators. Please also continue to provide information on the application in practice of above Decree No. 62, as well as information on any other measures, taken or envisaged, to prevent, suppress and punish trafficking in persons for the purpose of exploitation, taken in accordance with the National Plan of Action against Human Trafficking of 2004.