Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Worst Forms of Child Labour Convention, 1999 (No. 182) - Cuba (Ratification: 2015)

The Committee notes the Government’s first report.

Article 3 of the Convention. Worst forms of child labour. Clause (a). 1. Sale and trafficking of children. The Committee notes the Government’s indication in its report that section 316(1) to (4) of the Penal Code prohibits the sale and trafficking of minors. Section 316(1) establishes a penalty of between two and five years of imprisonment for the sale of a minor under 16 years of age to another person in exchange for recompense, financial compensation or other benefits. Section 316(3) provides that the sentence of imprisonment shall be between seven and 15 years when the sale of the minor occurs in the context of international trafficking, for acts of corruption, pornography, prostitution, forced labour, activities related to drug trafficking or the consumption of drugs. The Committee notes that, according to the Government in its report on the application of the Forced Labour Convention, 1930 (No. 29), a National Plan of Action to Combat Trafficking in Persons and Protect Victims (2017–20) has been adopted. It notes that the “zero tolerance” policy covers all types of trafficking and other crimes related to sexual, labour or other types of exploitation. The Government adds that the General Directorate of Investigation and Operations (DGICO) deals with victims of trafficking, and particularly with children and young persons. In this process, the officials of the Forensic Medicine Institute are responsible for assessing the physical and psychological damage to victims in order to recommend treatment and appropriate follow-up. However, the Committee notes that, in its concluding observations of 30 October 2015, the Committee on the Rights of the Child concerning the application of the Optional Protocol on the sale of children, child prostitution and child pornography expressed concern that the offence of corruption of minors is limited to cases involving a child under the age of 16 years (CRC/C/OPSC/CUB/CO/1, paragraph 25). The Committee recalls that, in accordance with Article 3(a) of the Convention, the sale and trafficking of children is one of the worst forms of child labour and that under the terms of Article 2, the term “child” shall apply to “all persons under the age of 18”. Noting that the provisions abovementioned exclusively cover children under 16 years of age, the Committee requests the Government to take the necessary measures to ensure that children between the ages of 16 and 18 years are also protected against sale and trafficking for sexual and labour exploitation. The Committee also requests the Government to indicate the manner in which the National Plan of Action to Combat Trafficking in Persons and Protect Victims (2017–20) envisages action to combat trafficking in children under 18 years of age.

2. Forced or compulsory labour. The Committee notes that the Constitution and the Penal Code do not explicitly prohibit forced or compulsory labour by children. The Committee requests the Government to indicate whether there are legal provisions specifically prohibiting the forced or compulsory labour of children under 18 years of age. If not, it requests the Government to indicate the measures taken or envisaged for the adoption of such provisions in the national legislation.

Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. The Committee notes that section 310 of the Penal Code prohibits the use, offering or procuring of minors under 16 years of age for prostitution or the practice of acts of corruption, heterosexual or homosexual pornography or other dishonest types of behaviour. Violation of this provision is punishable by a sentence of imprisonment of from seven to 15 years, increased to between 20 and 30 years if the victim is a minor under 12 years of age. The Committee also notes from the Government’s report on the application of Convention No. 29 the indication that the Federation of Cuban Women (FMC) organized educational discussions in 2015 on procurement for 729 families authorized to rent rooms to tourists. The Committee recalls that, in accordance with Article 3(b) of the Convention, the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances is one of the worst forms of child labour and that, under the terms of Article 2, the term “child” applies to “all persons under the age of 18”. The Committee therefore requests the Government to take the necessary measures to ensure that the relevant provisions protect all children under 18 years of age, and not only those under 16.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that sections 311, 313 and 314 of the Penal Code establish penalties for any person who supplies drugs to a minor under 16 years of age or encourages their consumption. However, the Government does not indicate whether the law explicitly prohibits the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, as defined in the relevant international treaties. The Committee therefore requests the Government to indicate whether the legislation prohibits the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, as defined in the relevant international treaties. If not, the Committee requests the Government to take the necessary measures for the inclusion of such a prohibition in the law.

Clause (d) and Article 4. Hazardous work and determination of hazardous types of work. In its 2014 observation on the application of the Minimum Age Convention, 1973 (No. 138), the Committee observed that, under section 16(2) of Decision No. 8/2005 of 1 March 2005 issuing the General Regulations on labour relations, the list of jobs involving risks for young persons under 18 years of age is drawn up in an appendix to the collective labour agreement.

Article 5. Monitoring mechanisms. The Committee takes due note of the Government’s indication that the National Labour Inspection Office is under the control of the Ministry of Labour and that the labour inspection services are responsible for monitoring the application of labour law and imposing the penalties established by law on offenders. The Government adds that labour inspectors have received special training to detect cases of child labour and that no violations have been detected so far. The Committee requests the Government to provide information on the activities of the labour inspection services, the National Labour Inspection Office and any other body responsible for ensuring the eradication of the worst forms of child labour. It also requests the Government to provide information on the existence or creation of other bodies responsible for ensuring the eradication of the worst forms of child labour.

Article 6. Programmes of action. The Committee takes due note of the Government’s indication that there are various social programmes guaranteeing the right of everyone to basic necessities so that no one needs to have recourse to child labour.

1. Preventive activities, assistance and social work. According to the Government’s report, labour directorates in the provinces and at the municipal level include departments responsible for preventive action, assistance and social work. Their action is also intended to detect minors in a vulnerable situation with a view to transforming the causes of such vulnerability and helping the community and families to prevent them from becoming engaged in child labour. The Committee requests the Government to provide information on the number of children in situations of vulnerability to child labour who are identified and who have benefited from preventive action, assistance and social work.

2. National Plan of Action for Children, Young Persons and their Families. The Committee notes the reference by the Government to the establishment of a National Plan of Action for Children, Young Persons and their Families for the period 2015–20, in collaboration with various State institutions, local authorities, representatives of civil society, organizations of children and young persons and UNICEF. It requests the Government to provide information on the objectives of the National Plan of Action and on the results achieved in terms of eliminating the worst forms of child labour.

Article 7(1). Sanctions. The Committee notes that, under section 234 of the Regulations giving effect to the Labour Code, the penalty imposed on employers found in violation of the Labour Code is 2,000 Cuban pesos (CUP) (approximately US$75), which is doubled in the event of a repeated offence. Moreover, in cases of violation, section 231 of the Regulations empower the labour inspectorate to directly: (i) issue an injunction for the cessation of any violation; (ii) order the immediate confiscation of equipment and machinery or the closure of the workplace or work centre considered to be hazardous for the safety and health of workers, the population as a whole, or both; and (iii) penalize persons or associations in the private sector. Section 232 of the Regulations specifies that the administrative or disciplinary measures taken by the labour inspection services must be proportionate to the gravity of the offence, that a temporary or permanent suspension of the permit granted to the employer may be ordered by the competent bodies and that a penal procedure shall be initiated in the event of a fatal accident. However, the Committee notes that, in its concluding observations, the Committee on the Rights of the Child noted with concern the small percentage of cases of prostitution and child pornography that lead to prosecution and criminal sanctions (CRC/C/OPSC/CUB/CO/1, paragraph 29). The Committee requests the Government to ensure that in-depth investigations and effective prosecutions are carried out against those responsible. It also requests the Government to provide information on the penalties imposed in practice and the number of violations recorded.

Article 7(2). Effective and time-bound measures. Clause (b). Providing 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. The Government indicates that victims who are removed from the worst forms of child labour are provided with assistance from the moment of their identification. The Forensic Medicine Institute of the Ministry of the Interior undertakes an assessment of the physical and psychological damage which the victim may have suffered in order to decide on the appropriate care to be provided. However, the Committee notes that the Committee on the Rights of the Child, in its concluding observations, noted with concern that child victims of sexual abuse may in practice be treated as offenders and stigmatized (CRC/C/OPSC/CUB/CO/1, paragraph 35). The Committee therefore requests the Government to take the necessary measures to ensure that any child under 18 years of age who has become involved in prostitution is treated as a victim and not an offender. It also requests the Government to provide information on the number of children removed from the worst forms of child labour and the support provided to them to assist in their rehabilitation and social integration in practice.

Article 7(3). Designation of the competent authority. The Committee notes that the Committee on the Rights of the Child, in its concluding observations, welcomed the appointment of the First Vice-President as the national authority responsible for monitoring and coordinating issues related to children’s rights. However, it expressed concern at the lack of clarity and the duplication of structures responsible for the implementation of children’s rights (CRC/C/OPSC/CUB/CO/1, paragraph 13). The Committee requests the Government to provide information on the activities of the First Vice-President and their impact on the implementation of the provisions of the Convention.

Article 8. International Cooperation. The Committee notes the Government’s indication that Cuba is part of the Latin America and the Caribbean Free of Child Labour Regional Initiative, the objective of which is to reinforce inter governmental cooperation to combat child labour through prevention and intra and intersectoral institutional coordination. The Government also refers to a 2014–18 cooperation project between Cuba and UNICEF and another cooperation project entitled “Dissemination of the rights of children and young persons”, which has been in place since 2000 and has raised awareness among the population concerning international treaties on the protection of children and young persons and the need for collective action. In its report on the application of Convention No. 29, the Government indicates that it is currently considering to adopt a Memorandum of Understanding with Canada on cooperation in relation to the sexual abuse of children with a view to combating prostitution, the sale and trafficking of children and their use in pornography. The Committee requests the Government to provide information on the measures adopted for the implementation of the Regional Initiative. It also requests the Government to provide information on the content of the two cooperation projects with UNICEF, with an indication of the results achieved in the elimination of the worst forms of child labour. Finally, the Committee requests the Government to indicate whether the memorandum of understanding with Canada has been finalized and to provide information in this regard.

Application in practice. The Government indicates that it has not encountered difficulties in the application of the Convention in practice. However, the Committee notes that the Committee on the Rights of the Child, in its concluding observations, noted with concern the absence of a comprehensive system of data collection for the gathering of information (CRC/C/OPSC/CUB/CO/1. paragraph 7). The Committee requests the Government to take the necessary measures to ensure that up-to-date statistical data are available on the worst forms of child labour in order to provide an overview of the situation of children in the country and as a basis for assessing the application of the Convention in practice. To the extent possible, this data should be disaggregated by age and by gender. It also requests the Government to indicate whether studies have been carried out to assess the extent of child labour in the country.