Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Abolition of Forced Labour Convention, 1957 (No. 105) - Azerbaijan (Ratification: 2000)

The Committee notes the updated text of the Code of Administrative Offences, of 11 July 2000, communicated by the Government with its report.

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted that, under section 169.1 of the Criminal Code, “organization or participation in a prohibited public assembly” is punishable with correctional work or deprivation of freedom for a term of up to two years (which involves compulsory prison labour, in accordance with section 95 of the Code on the Execution of Sentences). It also noted that similar penal sanctions are provided for in section 233 of the Criminal Code for the “organization of group actions violating public order”. Noting also the provisions of sections 7 and 8 of the Act on the Freedom of Assembly, of 13 November 1998, concerning the restriction and prohibition of public assemblies in order to ensure public order and to defend public interests, the Committee requested information on the application in practice of sections 169.1 and 233 of the Criminal Code, including copies of any court decisions which could define or illustrate their scope, so as to enable the Committee to ascertain whether they are applied in a manner compatible with the Convention.

The Committee recalled, referring also to the explanations contained in paragraph 154 of its 2007 General Survey on the eradication of forced labour, that Article 1(a) of the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system. The freedom of expression of political or ideological views may be equally restricted by way of prohibition of various kinds of meetings or assemblies, which is also contrary to the Convention, if such prohibition is enforced by sanctions involving compulsory labour.

The Committee notes the Government’s indications in the report that there were no cases of application of section 169.1 in 2009, but five persons were convicted under section 233 during the same year, two of them being sentenced to imprisonment. The Committee requests the Government once again to provide information on the subject matter of the court decisions passed under section 233 of the Criminal Code, indicating the penalties imposed. Please also supply information on the application in practice of sections 169.1, as soon as such information becomes available.

In its earlier comments, the Committee referred to the Criminal Code provision which makes punishable with sanctions of imprisonment (involving compulsory prison labour) the “inflaming of the national, racial or religious enmity” (section 283.1) and sought information on the application of this provision in practice, including copies of any court decisions defining or illustrating its scope. The Committee previously noted the Government’s indication that there were three cases of application of section 283.1 in 2007. The Government indicates in its latest report that no cases of application of this section were reported in 2009. The Committee observes that the above section provides for the imposition of penalties involving compulsory labour in circumstances defined in terms which are wide enough to give rise to questions about their application in practice. The Committee therefore requests the Government once again to supply, in its next report, information on the subject matter of the court decisions passed under this section, indicating the penalties imposed.

The Committee has noted that section 147 of the Criminal Code prohibits defamation, which is defined as “dissemination, in a public statement … or through the mass media, of false information discrediting the honour and dignity of a person”. Defamation is punishable with imprisonment for a term of up to six months (which involves compulsory prison labour, as explained above). The Committee has noted that, in recent years, two cases, in which penalties involving compulsory labour had been imposed in application of the abovementioned section 147 were brought before the European Court of Human Rights which held that the convictions based on national law constituted a breach of Article 10 of the European Convention on Human Rights, which protects the freedom of expression. The Committee requests the Government to supply, in its next report, information on the subject matter of the court decisions passed under the above provision of the Criminal Code, indicating the penalties imposed. It hopes that the necessary measures will soon be adopted with regard to section 147 with a view to ensuring that no penal sanction involving compulsory labour can be imposed as a means of political coercion and punishment of the peaceful expression of non-violent views that are critical of government policy and the established political system, so as to bring national law into conformity with Article 1(a) of the present Convention, and that the Government will report on the action taken to this end.

Article 1(c). Disciplinary sanctions applicable to public officials. The Committee previously noted that, under section 314.1 of the Criminal Code, the non-performance or improper performance by public officials of their duties as the result of a negligent attitude, causing substantial harm to legitimate rights and interests of persons or organizations, or to state interests, is punishable by correctional work or by deprivation of freedom (which involves compulsory prison labour). The Committee notes the Government’s indication in the report that 11 persons were convicted under this section in 2009, four of them were sentenced to correctional work. The Committee again requests the Government to provide, in its next report, information on the subject matter of the court decisions passed under section 314.1 of the Criminal Code, which could define or illustrate its scope, including sample copies of such decisions, in order to enable the Committee to ascertain whether this provision is not used as a means of labour discipline within the meaning of the Convention.

Article 1(d). Sanctions for participating in strikes. In its earlier comments, the Committee referred to section 233 of the Criminal Code, under which sanctions of imprisonment (involving compulsory labour) or correctional work may be imposed for the organization of group actions violating public order and resulting in disturbances of operation of transport or work of enterprises, institutions or organizations. It requested the Government to indicate whether section 233 is applicable to participants in unlawful strikes and to supply information on its application in practice, including copies of any relevant court decisions.

The Committee previously noted the Government’s indications in the report that there was one conviction under this section in 2006 and three cases of conviction under this section in 2007. The Government indicates in its latest report that five persons were convicted under section 233 in 2009, two of them were sentenced to imprisonment. As the Committee has noted in its 2007 and 2009 observations addressed to the Government under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), section 233 is applicable to strikes in public transport, which are prohibited under section 281 of the Labour Code.

The Committee reiterates its hope that the necessary measures will be taken in order to repeal or amend section 233 of the Criminal Code, so as to ensure that no penalties involving compulsory labour can be imposed for a peaceful participation in strikes, as required by the Convention. Pending the adoption of such measures, the Committee requests the Government to provide, in its next report, information on the subject matter of the court decisions passed under this section in relation to participants in unlawful strikes, indicating the penalties imposed.