Abolition of Forced Labour Convention, 1957 (No. 105) - Peru (Ratification: 1960)

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative acknowledged the observation of the Committee of Experts expressing satisfaction with the repeal, by provisions drafted for the new Penal Code, of the provisions which permitted judges, in cases where offences were committed by "savages", to replace sentences of imprisonment by assignment to a penal agricultural colony for an unspecified period of up to 20 years. This was an important step in the history of his country.

The Workers' and Employers' members stated that there was clear progress - in law - in application of this Convention which had been the subject of discussion since 1980 following the repeal of the former article 44 of the Penal Code. They hoped this Convention would be fully applied in practice in the future.

Individual Case (CAS) - Discussion: 1990, Publication: 77th ILC session (1990)

A Government representative, the Secretary of State for the Ministry of Labour and Social Affairs, stated that his Government regretted the reiterated observations of the Committee of Experts in connection with article 44 of the Penal Code in the application of this Convention. He observed that the date for promulgating the new Penal Code which rescinded this provision had been extended until 28 July 1990. He considered that during this period the law would be passed and a copy of the new Code would be submitted very soon. He reminded the Committee that delays in introducing the new Code were due to legal technicalities and that under the new provision, any person committing an act without understanding the criminal nature of that act, as a result of his customs or culture, would be exempted from responsibility and the punishment would be accordingly decreased below the legal minimum.

The Employers' members considered that a provision, such as that contained in the Penal Code of Peru, which established a difference in offences committed by "savages" and those committed by "civilised men", was inadmissible. Since the Government representative had stated that the amendment to comply with the requirements of the Convention was under way, the Employers' members asked the Government to take all necessary steps for this amendment to be completed as rapidly as possible, and a copy sent to the Committee of Experts.

The Workers' members expressed full agreement with the remarks of the Employers' members.

The Committee took note of the information given by the Government on the planned enactment of a new Penal Code which was in progress. It expressed the hope that the Government would be in a position to send a full copy of the Code in the near future for examining by competent bodies of the ILO.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the information provided by the Government in its 2019 report as well as the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

The Committee also notes the joint observations of the Autonomous Workers' Confederation of Peru (CATP); the Confederation of Workers of Peru (CTP); the General Confederation of Workers of Peru (CGTP); and the Single Confederation of Workers of Peru (CUT-Perú) transmitted by the Government with its supplementary information.

Article 1(a) and (d) of the Convention. Imposition of community service as a penalty for opposition to the established political, social or economic system, or as punishment for participating in a strike. For a number of years, the Committee has been observing that section 200(3) on extortion of the Penal Code, which provides that anyone who, through violence or threats, occupies premises, blocks thoroughfares, prevents the free movement of citizens or disrupts the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities an undue benefit or economic advantage or advantage of any other nature, shall be liable to imprisonment of five to ten years, is drafted in broad terms. In this regard, the Committee noted that while the national legislation establishes the voluntary nature of work performed by persons sentenced to imprisonment (section 65 of the Code for the Implementation of Sentences), under sections 31 to 34 of the Penal Code and section 119 of the Code for the Implementation of Sentences, the penalty for the performance of community services – which may be applied either as an autonomous sentence or as an alternative to a custodial sentence – obliges the person concerned to perform work free of charge for various entities. Moreover, the above-mentioned legislation makes no mention of the possibility for the convicted person to consent to, or refuse, the sentence of the performance of community service when applied as an alternative to a custodial sentence. The Committee therefore requested the Government to clarify whether the sentence of the performance of community services could be imposed as an alternative in the event of a violation of section 200(3) of the Penal Code and, if so, whether the consent of the person concerned is required for the application of this penalty.

The Committee notes the Government’s indication, in its report, that the penalty of community service as an alternative to a custodial sentence cannot be applied to persons convicted under section 200(3) of the Penal Code as a result of: (i) section 32 of the Penal Code which provides that the penalty of community service can only be applied as an alternative to a custodial sentence when the penalty to be replaced is not greater than four years (while section 200(3) provides for a penalty of imprisonment of five to ten years); and (ii) section 3 of Legislative Decree No. 1300 of 30 December 2016 which expressly provides that prison sentences resulting from section 200(3) of the Penal Code cannot be replaced by a penalty of community service. It notes that the Government does not provide information on the interpretation made by the courts of the provisions of section 200(3) of the Penal Code which are drafted in broad terms, as previously requested by the Committee. The Committee observes however that, in its 2018 report, the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises highlighted that community leaders stated that they had faced criminal charges under section 200(3) of the Penal Code for allegedly disrupting the provision of public services or legally authorized work while taking part in protests to demand respect for human rights, and that numerous people who had participated in social protests against the impact of business activities on human rights had faced criminal charges and been subjected to various forms of intimidation and stigmatization (A/HRC/38/48/Add.2, 9 May 2018, paragraphs 70 and 71).

The Committee further notes that several other provisions of the Penal Code provide that community service can be handed down as an autonomous sentence or as an alternative to a custodial sentence in circumstances covered by the Convention, namely:

• -sections 130 (slander), 345 (insulting national symbols or heroes of the Fatherland), and 452 (disturbance of the public peace) which expressly provide for a penalty of community service; and
• -sections 132 (defamation), 315 (serious disturbance of the public peace), 339 (hostile acts against a foreign State), 344 (outrage to symbols or heroes of the Fatherland), and 348 (riot), which provide for a penalty of imprisonment which may be replaced by an alternative penalty of community service according to section 32 of the Penal Code.

The Committee recalls that when provisions are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views, and insofar as they are enforceable with sanctions involving compulsory labour, they fall within the scope of the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 306). It notes that, in its 2018 report, the United Nations Working Group reiterated the recommendations of the United Nations Human Rights Committee urging the Government to consider adopting legislation decriminalizing defamation, as the criminalization thereof poses a threat to the freedoms of opinion or expression, and to conduct effective investigations of reports concerning attacks against human rights defenders (A/HRC/38/48/Add.2, paragraph 72). In that regard, the Committee notes that the National Action Plan on human rights for 2018-2021 provides for the establishment of a mechanism for the protection of human rights defenders by 2021 and a database to track threats to their safety by 2019 (p. 129). The Committee hopes that the Government will ensure that the above provisions of the Penal Code are not invoked to impose criminal penalties involving compulsory labour for expressing political views or opposition to the established political, social or economic system or peacefully participating in activities carried out as part of a social protest movement or strike. The Committee requests the Government to provide information on any court rulings handed down under those provisions, the penalties imposed and the description of the acts giving rise to such rulings. The Committee further requests the Government to provide updated information on the development and implementation of the mechanism for the protection of human rights defenders and the database established to track threats against human rights defenders, provided for under the National Action Plan on human rights for 2018-2021.

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

Article 1(a) and (d) of the Convention. Imposition of community service as a penalty for opposition to the established political, social or economic system, or as punishment for participating in a strike. In its previous comments, the Committee referred to the provisions of section 200(3) of the Penal Code, which provides that anyone who, through violence or threats, occupies premises, blocks thoroughfares, prevents the free movement of citizens or disrupts the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities an undue benefit or economic advantage or advantage of any other nature, shall be liable to imprisonment of five to ten years. Observing that the provisions of section 200(3) were drafted in broad terms, the Committee requested information on the practical use of these provisions by the national courts in order to evaluate their scope and verify that they were not invoked to impose criminal penalties on persons who participate peacefully in activities carried out as part of a social protest movement or a strike. The Committee also asked the Government to clarify whether persons infringing these provisions could be sentenced to the alternative penalty of community service and, if so, whether their consent was required to this alternative penalty to imprisonment.

The Committee notes the Government’s indication in its report that it is finalizing the analysis of the requested data in order to forward them to the Committee. It also notes that the Autonomous Workers’ Confederation of Peru (CATP), in its observations received in September 2016, insists on the Government sending the court decisions issued on the basis of section 200(3) of the Penal Code. The Committee therefore hopes that the Government will be in a position to provide information on court decisions based on the provisions of section 200(3) of the Penal Code to enable the Committee to examine how the courts interpret these provisions. The Committee requests the Government to provide information on the offences resulting in convictions issued on the basis of section 200(3) of the Penal Code. The Committee further requests the Government to indicate whether persons convicted under section 200(3) of the Penal Code may be sentenced to the alternative penalty of community service and, if so, whether this penalty may be imposed without the prior consent of the convicted person.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1(a) and (d) of the Convention. Imposition of community service as a punishment for expressing views opposed to the established political, social or economic system or for participation in a strike. The Committee previously asked the Government to provide information on any court decisions handed down under the provisions of section 200(3) of the Penal Code and to specify whether persons found to be in breach of these provisions may be sentenced, as an alternative to imprisonment, to the performance of community service and, if so, whether their consent is required for the performance of such work. According to section 200(3), anyone who, through violence or threats, occupies premises, blocks transportation routes, prevents the free movement of citizens or disrupts the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities an undue benefit or economic advantage or advantage of any other nature, shall be liable to a custodial sentence of five to ten years. The Committee noted in this connection that the General Confederation of Workers of Peru (CGTP) found the definition of this offence to be ambiguous and too broad: making it possible to impose criminal penalties for participation in protest action against the political, social or economic system or for exercising the right to strike.

In its report, referring to the provisions of section 200(3) and (4), the Government states that the conduct described in section 200(3) is confined to public officials who have decision-making authority or hold positions of trust or management posts and for whom the right to strike is not recognized in the Constitution. It adds that if accompanied by violence or threats, such conduct would amount to the offence of “special extortion” and that the courts have the discretion to determine the penalty applied.

The Committee takes note of this information. It points out that the provisions for which it sought information from the Government regarding their application in practice were only those of section 200(3) of the Penal Code, the coverage of which does not appear to be confined to public employees. In so far as the provisions of section 200(3) are drafted in broad terms, it should be ensured that they are not used to impose criminal penalties on persons who participate peacefully in activities involved in a social protest movement or a strike. Consequently, the Committee requests the Government to provide information, in future reports, on court decisions handed down under section 200(3) of the Penal Code – distinguishing cases of participation in social protest actions and cases of the exercise of the right to strike – to enable the Committee to examine how the courts interpret these provisions. Please indicate whether persons found to be in breach of the provisions of section 200(3) of the Penal Code may be sentenced to the alternative penalty of community service without having consented thereto.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 1(a) and (d) of the Convention. Imposition of a sentence of community service as a punishment for expressing views opposed to the established political or economic or for having participated in strikes. In its previous comments, the Committee referred to the observations of the General Confederation of Workers of Peru (CGTP) concerning the amendments made in 2007 to section 200 of the Penal Code, which makes extortion a criminal offence. Under the terms of subsection 3, any person who through violence or threats occupies premises, blocks communication routes, prevents the free movement of citizens or disturbs the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities a benefit or an undue economic advantage or any advantage of any other nature, shall be liable to a custodial sentence of five to ten years. According to the CGTP, the definition of this offence is ambiguous and too broad, thereby making it possible to impose criminal penalties on those who participate in protest action opposing the political, social or economic system or who exercise the right to strike.

In this regard, the Committee noted that the national legislation establishes the voluntary nature of work performed by persons sentenced to imprisonment (section 65 of the Code for the Enforcement of Sentences). However, it noted that, under sections 31 to 34 of the Penal Code and section 119 of the Code for the Enforcement of Sentences, the penalty of the performance of community services – which may be applied either as an autonomous sentence or as an alternative to a custodial sentence – obliges the person concerned to perform work free of charge for various entities. Moreover, the legislation referred to above makes no mention of the possibility for the convicted person to consent to, or to refuse, the sentence of the performance of community service when applied as an alternative to a custodial sentence. The Committee therefore asked the Government to clarify whether the sentence of the performance of community services could be imposed as an alternative in the event of a violation of section 200(3) of the Penal Code and, if so, whether the person concerned is called upon to give consent to the application of this penalty.

The Government indicates in its latest report that persons convicted of extortion may ask to benefit from the mechanism for the reduction of sentences on account of completed work or training and also to request release on parole. It also states that it does not have any information at present on any complaints made for violations of section 200(3) of the Penal Code or on any proceedings instituted or rulings issued in this respect.

The Committee notes this information. It observes that the provisions of section 200(3) are drafted in broad terms and could be applied to activities undertaken during a social protest or a strike. This being the case, the Committee needs to be sure that any persons who participate peacefully in these activities cannot incur any criminal penalty under the terms of which they could be obliged to work. The Committee therefore requests the Government once again to clarify whether persons found guilty of a violation of section 200(3) of the Penal Code could be sentenced as an alternative to the performance of community services. If so, the Government is requested to indicate whether, in order to impose this sentence, the judge must obtain the prior consent of the convicted person. The Committee also requests the Government to continue to supply information on any court rulings issued on the basis of section 200(3) of the Penal Code so that it can evaluate the manner in which the courts interpret these provisions.

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

Article 1(a) and (d) of the Convention. Imposition of a sentence of community service as a punishment for expressing political views or for having participated in strikes. The Committee notes the Government’s report and the comments made by the General Confederation of Workers of Peru (CGTP) on the application of the Convention, which were attached to the Government’s report.

In its comments, the CGTP refers to the adoption in 2007 of various legislative provisions to “criminalize” social protest. The trade union refers in particular to the adoption of Decree No. 982, amending section 200 of the Penal Code, which incriminates extortion. Under the terms of subsection 3, any person who through violence or threats occupies premises, blocks communication routes, prevents the free movement of citizens or disturbs the normal operation of public services or work on a legally authorized worksite, with a view to obtaining from the authorities a benefit or an undue economic advantage, or any advantage of any other nature, shall be liable to a custodial sentence of from five to ten years. According to the CGTP, the definition of this offence is ambiguous and too broad with the effect that it would make it possible to impose penal sanctions on those who participate in protest action opposing the political, social or economic system or who are exercising the right to strike. The union recognizes that the sentence envisaged in section 200 of the Penal Code for the crime of extortion does not explicitly refer to the imposition of labour. Nevertheless, the sentence of the performance of community service is one of the penalties set out in the legislation which may be applied as a punishment for certain offences.

The Committee recalls in the first place that, following the adoption of Act No. 27187 of 1999, section 65 of the Code for the Implementation of Sentences explicitly established the voluntary nature of work performed by persons convicted to a custodial sentence. With regard to the penalty of the performance of community services, the Committee observes, under the terms of
sections 31–34 of the Penal Code and section 119 of the Code for the Implementation of Sentences, that this sentence may be applied either as an autonomous sentence (when it is specifically associated with an offence), or as an alternative to a custodial sentence (when, in the view of the court, the penalty to be replaced is not greater than four years). Section 34 of the Penal Code provides that this sentence obliges the person concerned to perform work free of charge with various entities. The Committee observes that the legislation referred to above makes no mention of the possibility for the convicted person to consent to, or to refuse the sentence of the performance of community services when applied as an alternative to a sentence of imprisonment.

In view of the above, the Committee requests the Government to indicate whether the sentence of the performance of community services may be imposed as an alternative in the event of violations of section 200(3) of the Penal Code and, if so, whether the person concerned is called upon to give consent to the application of this penalty. The Committee requests the Government to provide copies of court rulings under section 200(3) of the Penal Code so that it can examine the manner in which these provisions are interpreted by the courts.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

Article 1(c) and (d) of the Convention. In previous comments, the Committee referred to section 283 of the Penal Code under which anyone who, without creating a situation of general danger, prevents, disrupts or obstructs the normal operation of transport, public communications, or the supply of water, electricity or any other source of power, shall be punished by a custodial sentence of not less than two years and not more than four years. The Committee observed that under section 65 of the Code for the Execution of Sentences, custodial sentences involve compulsory labour.

The Committee notes the indications given in the Government's report to the effect that the custodial sentence is given effect only by judicial order and that prison labour is not applied as a measure of labour discipline, is not of a harsh nature and is not an affront to the prisoner's dignity.

The Committee wishes to recall that, in most cases, labour imposed on persons as a consequence of a conviction in a court of law will have no relevance to the application of the Abolition of Forced Labour Convention.

On the other hand, cases in which any sanction which involves imposing compulsory labour on a person because he has committed a breach a labour discipline or has participated in a strike are covered by the Convention (see 1979 General Survey of the Committee of Experts on the abolition of forced labour, paragraphs 105 et seq).

Nevertheless, the Committee considered that legal provisions which punished acts affecting the operation of essential services in the strict sense, namely, those the interruption of which would endanger the life, personal safety or health of the whole or part of the population are not incompatible with the Conventions on forced labour (on this matter, see the 1979 General Survey on the abolition of forced labour, paragraphs 110 and 122). The Committee observes that section 283 of the Penal Code covers such essential services as supply of water, electricity and telephone services and others which are not essential in the strict meaning of the term such as transport or the supply of sources of power. In addition, even though it deals with essential services within the strict meaning of the term, section 283 applies specifically to acts which do not create a situation of general danger. Hence it allows the imposition of custodial sentences involving work in violation of Article 1(c) and (d) of the Convention.

The Committee hopes that the necessary measures will be taken to amend or repeal section 283 of the Penal Code and that the Government will supply information on the measures taken in this regard.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

1. Article 1(c) and (d) of the Convention. In its previous direct request the Committee asked the Government to provide information on the practical application of section 283 of the Penal Code under which anyone who, without creating a situation of general danger, prevents, disrupts or obstructs the normal operation of transport, public communications, or the supply of water, electricity or any other source of power, shall be punished by a custodial sentence of not less than two years and not more than four years. The Committee observed that under section 65 of the Code for the Execution of Sentences, custodial sentences involve compulsory labour.

2. The Committee notes that, according to the Government's report, under the terms of section 135(2) of the new Code of Criminal Procedure, the custodial sentence for an offence must be more than four years for a judge to be able to issue a detention order, which therefore cannot be issued for an offence under section 283 of the Penal Code. Therefore, according to the Government, section 283 of the Penal Code is not in contravention of the Convention because persons who contravene section 283 are not liable to imprisonment, given that the sentence applicable must be more than four years for it to become effective. With regard to section 65 of the Code for the Execution of Sentences the Committee notes the Government's information to the effect that the purpose of the provision is not to allow forced labour in contravention of the relevant Conventions, but rather to punish offences and at the same time to rehabilitate the prisoner with a view to his ultimate reintegration in society as a useful citizen.

3. In this regard, the Committee requests the Government to indicate the specific circumstances in which compulsory labour can be exacted and whether the exaction of compulsory labour is always the result of a conviction in a court of law, or whether compulsory labour can be exacted for infringements of labour discipline within the public services considered essential. Please provide copies of any court decisions in this area.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee asked the Government in its previous direct request to provide information on the application in practice of section 283 of the Penal Code under which "Anyone who, without creating a situation of general danger, prevents, disrupts or obstructs the normal operation of transport, public communications, or the supply of water, electricity or any other source of power, shall be punished by a custodial sentence of not less than two years and not more than four years". The Committee observed that under section 65 of the Code for the Execution of Sentences, custodial sentences involve compulsory labour.

In its last report, the Government stated that modification or derogation of section 283 would mean that criminal acts of individuals who engaged in terrorist-type activities would go unpunished.

The Committee notes the indications given by the Government regarding the conditions in which detention takes place, and those on the power the judge has to suspend application of the sentence.

The Committee observes that these indications do not affect the power the judge has, as the Government also indicated in its report, to impose under section 283 on anyone who "without creating a situation of general danger disrupts the operation of the services mentioned in section 283, a custodial sentence involving compulsory labour, contrary to the provisions of the Convention".

2. The Committee notes the Government's information on the means available for workers in cases of application of section 82 of Legislative Decree No. 25593.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

Article 1(c) and (d) of the Convention

1. In earlier comments the Committee referred to the Presidential Decree No. 070-90-TR and observed that any controversy as to the number of workers necessary for the maintenance of essential services should be settled by the administrative authorities; that the list of such workers should be submitted together with the declaration of the strike and that failure to comply with the above obligation would constitute an offence punishable by law. The Committee also observed that the list of services deemed to be essential was fairly broad. The Committee notes that Presidential Decree No. 070-90-TR has been repealed by Legislative Decree No. 25593. It also notes the Act on collective labour relations and the conclusions of the Committee on Freedom of Association in Cases Nos. 1648 and 1650 (291st Report), in which that Committee observed that the list of essential services set out in section 83 of Legislative Decree No. 25593 is overbroad and includes services which are not essential in the strict sense of the term, such as fuel (c), penal establishments (e), transport (g), and administration of justice (i), services of a strategic nature or which are linked to national defence and security (h). In the Committee on Freedom of Association's view, subparagraph (j) of above-mentioned section 83, which provides that essential services are services whose interruption creates a serious and imminent risk for property, could be construed in such a way as to restrict substantially the right to strike. The Committee also observed that compulsory arbitration in the event of a strike in essential public services where a settlement has not been reached in direct negotiation or conciliation (section 67), and the power conferred on the administrative authority to settle controversies over the number and occupation of workers who should be on the list of essential staff (section 82) constitute restrictions to the right to strike, and recommended that the legislation be amended so that such disputes would be submitted to an independent body. The Committee notes that failure to perform the service without just cause constitutes serious professional misconduct.

The Committee requets the Government to indicate the means available to workers for appealing the decision of the administrative authority and the provisions of the law applying to workers in the event of a breach of section 82 of Legislative Decree No. 25593.

2. The Committee asked the Government in its previous direct request to provide information on the application in practice of section 283 of the Penal Code under which "anyone who, without creating a situation of general danger, prevents, disrupts or obstructs the normal operation of transport, public communications, or the supply of water, electricity or any other source of power, shall be punished by a custodial sentence of not less than two years and not more than four years". The Committee observed that under section 65 of the Code for the Execution of Sentences, custodial sentences involve compulsory labour.

In its report the Government indicates that such a provision is warranted by social and political circumstances, since terrorist-type activities have had to be made punishable by law in order to preserve the democratic and social nature of the State.

The Committee observes that under section 283, the penalty may be applied to anyone who "without creating a situation of general danger" disrupts the operation of the services mentioned.

The Committee asks the Government to take the necessary steps to amend or repeal section 283 of the Penal Code, to ensure that penalties of imprisonment involving compulsory labour may not be imposed for breaches of labour discipline or participation in strikes.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Article 1(c) and (d) of the Convention

1. In its previous direct request, the Committee noted that, by virtue of section 4 of Presidential Decree No. 070-90-TR, respecting the minimum service necessary in the event of a strike in the essential services, differences respecting the number of workers that should be set down in the list of workers needed to maintain services shall be resolved by the administrative authority, and that trade union organisations or workers in public or private services who call a strike shall supply the list of workers needed to ensure that essential services are not interrupted when they call the strike (section 5). Non-compliance with this obligation is an offence that is punishable in accordance with the law (section 8).

The Committee also noted that the list of essential services set out in section 1 of Presidential Decree No. 070-90-TR is fairly broad, since it includes transport, cleaning and public health and all services the interruption of which, in the opinion of the minister for the corresponding sector, could endanger the life, health, freedom and personal safety of the population.

The Committee notes that, according to the information contained in the Government's report, the purpose of the above provisions is to protect the rights of third parties who are not involved in the labour dispute.

In order that the Committee may ascertain the scope of the provisions of Presidential Decree No. 070-90-TR, it requests the Government to provide information on the practical application of sections 4, 5 and 8 of the above Decree and to provide a copy of decisions that have been taken concerning the number of workers considered necessary for the maintenance of services and stating the total number of workers involved, particularly in the transport, communications and cleaning sectors. The Committee also asks the Government to provide information on the channels of appeal available to workers against a decision by the administrative authority and on the legal measures that are applicable (section 8) in the event of non-compliance.

2. The Committee notes section 283 of the Penal Code (Legislative Decree No. 635 of 25 April 1991) under which: "Any person who, without creating a public danger, prevents, obstructs or hinders the normal operation of transport or of the public services of communications or of the supply of water, electricity or energy-producing materials or similar activities shall be punished with imprisonment of not less than two nor more than four years." Sentences of imprisonment involve compulsory labour by virtue of sections 65 of the Code of Criminal Procedure (Legislative Decree No. 654 of 31 July 1991) and 116 of the regulations issued under the Code of Criminal Procedure (Presidential Decree No. 012-85-JUS of 12 June 1985). The Committee refers to paragraphs 110 and 111 of its General Survey of 1979 on the abolition of forced labour in which it indicated that the Convention does not protect persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of essential services, but that in such cases there must exist an effective danger.

The Committee notes that the provision of section 283 mentioned above may be applied to persons who, unintentionally, prevent or hinder the normal operation of certain public services and to cases in which the action does not give rise to a situation of danger.

The Committee asks the Government to provide information on the practical application of section 283 including details on the number of convictions, the criteria applied by the courts and copies of relevant sentences.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes with satisfaction that the new Penal Code (Legislative Decree No. 635 of 25 April 1991) repeals section 44 of the former Penal Code under which, where offences were committed by "savages" the judge could replace sentences of imprisonment by assignment to a penal agricultural colony for an unspecified period of up to 20 years, irrespective of the maximum duration of the sentence that the offence would entail if it had been committed by a "civilised man".

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Article 1(c) and (d) of the Convention.

1. The Committee notes Presidential Decree 070-90-TR, which extends the scope of Presidential Decree 017-62-TR respecting the minimum service necessary in the event of a strike in the essential services.

The Committee notes that, by virtue of section 4 of Presidential Decree 070-90-TR, differences respecting the number of workers that should be set down in the list of workers needed to maintain services shall be resolved by the administrative authority, and that trade union organisations or workers in public or private services who call a strike shall supply the list of workers needed to ensure that essential services are not interrupted when they call the strike (section 5). Non-compliance with this obligation is an offence that is punishable in accordance with the law (section 8).

The Committee also notes that the list of essential services set out in section 1 of Presidential Decree 070-90-TR is fairly broad, since it includes transport, cleaning and public health and all services which, in the opinion of the minister for the corresponding sector, could endanger the life, health, freedom and personal safety of the population.

The Committee requests the Government to supply information on the application in practice of sections 4, 5 and 8 of Presidential Decree 070-90-TR, as well as copies of decisions that have been taken respecting the number of workers that are considered to be necessary to maintain services, and to state the total number of workers involved, especially in the transport, communications and cleaning sectors. The Committee also requests the Government to supply information on the legal measures that are applicable (section 8) in the event of non-compliance.

2. In its previous comments, the Committee referred to section 251 of the draft Penal Code, under which:

Any person who, without creating a public danger, prevents, obstructs or hinders the normal operation of transport or of the public services of communications or of the supply of water, electricity or energy-producing materials or similar activities shall be punished with imprisonment for a period not exceeding five years. Sentences of imprisonment involve compulsory labour by virtue of sections 71 of the Code of Criminal Procedure (Legislative Decree No. 330 of 1985) and 116 of the Regulations issued under the Code (Presidential Decree No. 012-85-JUS of 12 June 1985).

The Committee noted that the list of services contained in section 251, in so far as it refers to transport services and services for the provision of energy-producing and similar materials, includes services whose interruption would not necessarily endanger the life, personal safety or the health of the whole or part of the population, and which therefore do not lie within the scope of Article 1(c) and (d) of the Convention.

The Committee recalls that forced labour imposed as a result of participation in strikes is incompatible with the Convention.

The Committee noted that its comments would be brought to the attention of the Advisory Committee of the Ministry of Justice responsible for the draft Penal Code. The Committee notes that the new Penal Code has not yet been adopted. The Committee requests the Government to supply a copy of the new Penal Code once it has been adopted.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in its report and the statement made to the Conference Committee in 1990.

In the comments that it has been making for more than ten years, the Committee has referred to section 44 of the Penal Code, under which, where offences are committed by "savages", the judge may replace sentences of imprisonment by assignment to a penal agricultural colony for an unspecified period of up to 20 years, irrespective of the maximum duration of the sentence that the offence would entail if it had been committed by a "civilised man".

The Committee notes section 20 of the draft Penal Code of September 1989, which replaces the draft of 1986, according to which "any person who, as a result of his culture or customs, commits an act that is punishable without being able to duly understand the offensive nature of the act or being responsible for his behaviour as a result of such understanding, shall be exempt from responsibility for such an act. Where, for these reasons, responsibility is diminished, the penalty shall be reduced even to below the statutory minimum".

The Committee noted that the time-limit for the enactment of the new Penal Code had been extended until April 1990. In June 1990, the Government representative to the Conference Committee stated that the time-limit had been once again been extended until July 1990.

The Committee notes that the new Penal Code has not yet been adopted. It also notes that, in October 1990, a draft text was submitted to make urgent amendments to the penal legislation; the commenting note on the reasons for the draft amendments referred to the fact that enactment of the projected overall reform of the Code was "not foreseen in the near future". The Committee regrets to note that the draft urgent amendments provide neither provide for the repeal of section 44 of the Code currently in force, which has been the subject of the Committee's comments for many years, nor for the adoption of section 20 of the draft Penal Code.

The Committee hopes that the Government will take the necessary measures without delay to repeal section 44 of the Penal Code.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Article 1(c) and (d) of the Convention. In its previous comments, the Committee referred to section 251 of the draft Penal Code, under which:

"Any person who, without creating a public danger, prevents, obstructs or hinders the normal operation of transport or of the public services of communications or of the supply of water, electricity or energy-producing materials or similar activities shall be punished with imprisonment for a period not exceeding five years." Sentences of imprisonment involve compulsory labour by virtue of sections 71 of the Code of Criminal Procedure (Legislative Decree No. 330 of 1985) and 116 of the Regulations issued under the Code (Presidential Decree No. 012-85-JUS of 12 June 1985).

The Committee noted that the list of services contained in section 251, in so far as it refers to transport services and services for the provision of energy-producing and similar materials, includes services whose interruption would not necessarily endanger the life, personal safety or the health of the whole or part of the population and which therefore lie within the scope of Article 1(c) and (d) of the Convention. Nor does the application of the Convention to such services vary as a function of the public or private nature of the entity providing them. Furthermore, the expression "or similar" contained in section 251, could, due to the breadth of its scope, give rise to an application that is contrary to the provisions of Article 1(c) and (d) of the Convention.

The Committee also noted the indications contained in the last but one report of the Government concerning possible amendments to section 251 of the draft, which could be introduced in respect of the sanction, by establishing a fine, disqualification or a prison sentence of up to three years, thereby giving the judge the opportunity to avail himself of section 72 of the draft which provides for conditional sentences. In this connection, the Committee noted that the reduction of the sentence to three years with the aim of being able to impose a conditional sentence does not overcome the incompatibility between the provision and the Convention in the case of the sentence being enforced, for example, in the event of a recurrence of the offence. In such cases, the imposition of compulsory labour for participation in strikes is incompatible with the Convention.

The Committee noted that its comments would be brought to the attention of the Advisory Committee of the Ministry of Justice, responsible for the draft. The Committee notes that the new Penal Code will be adopted in April 1990. The Committee requests the Government to supply a copy of the new Penal Code once it has been adopted.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

In the comments that it has been making for more than ten years, the Committee has referred to section 44 of the Penal Code, under which, where offences are commited by "savages", the judge may replace sentences of imprisonment by assignment to a penal agricultural colony for an unspecified period of up to 20 years, irrespective of the maximum duration of the sentence that the offence would entail if it had been committed by a "civilised man".

The Committee noted section 21 of the draft Penal Code published in the Official Journal of 31 March 1986 under which the judge may declare inapplicable or reduce the sentence below the minimum set out in the law for a person who, as a result of his culture or customs, commits an act that is punishable without being able to duly understand the offensive nature of the act or being responsible for his behaviour in view of such understanding.

The Committee also notes that Act No. 24911 of 25 October 1988 extended the time-limit for the enactment of the new Penal Code.

The Committee notes, from the information supplied by the Government in its report, that the new Penal Code will be adopted in April 1990.

The Committee requests the Government to supply a copy of the new Penal Code once it has been adopted.