Abolition of Forced Labour Convention, 1957 (No. 105) - Nicaragua (Ratification: 1967)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Impact of compulsory labour of convicted persons on the application of Article 1 of the Convention. In the previous comments relating to the application of the Forced Labour Convention, 1930 (No. 29), the Committee noted section 61 of the Penal Code, which provides that the penalty of community work cannot be imposed without the consent of the convicted person. The Committee also notes that under section 62 of the Penal Code, the judge can impose a penalty of community work as the main sentence. The Committee emphasizes that penalties involving compulsory labour come within the scope of the Convention when one of the circumstances specified in Article 1 of the Convention applies. The Committee requests the Government to clarify whether the consent of the person concerned is required in situations where the penalty of community work is imposed as the main sentence. If not, the Committee requests the Government to indicate the offences for which the judge can impose the aforementioned penalty.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1, paragraphs (a) and (d) of the Convention. Penal sanctions for expressing political views and participating in strikes. In its previous comments the Committee referred to sections 522 and 523 of the Penal Code, by virtue of which penalties of imprisonment, which involve the obligation to work, could be imposed as punishment for the expression of political views (inciting non-observance of the Constitution, organizing or joining communist parties or parties with another name that support the same or similar ideas), or participation in strikes declared illegal.

The Committee notes with satisfaction that the provisions mentioned are not contained in the new Penal Code promulgated in May of 2008.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 1(a) and (d) of the Convention. Imposition of sentences of imprisonment involving compulsory labour as a penalty for expressing political views or for having participated in strikes. In its previous comments, the Committee noted that, under the terms of section 61(2) of the Penal Code, those persons sentenced to a term of imprisonment (arresto) who do not have sufficient resources to pay the costs arising out of their prison stay are obliged to work. The Committee consequently drew the Government’s attention to the need to amend the following provisions of the Penal Code, by virtue of which prison sentences may be imposed as punishment for the expression of political views or for participation in illegal strikes:

-  section 522 of the Penal Code, under which a sentence of six months to two years’ imprisonment may be imposed on any person who incites the non-observance of the Constitution or attacks the republican and democratic regime established by it, or who directly encourages such activities;

-  section 523(1) and (2), by virtue of which a penalty of six months to two years’ imprisonment may be imposed on any person who organizes or belongs to communist parties, parties with another name that support the same or similar ideas, or any other internationally organized party. The same penalty is applicable to any person who assists or participates in the activities of these parties (assemblies, meetings and the preparation, printing, introduction and distribution of any kind of propaganda in the country);

-  section 523(3), under which any person who cooperates with, or in any way incites anyone to continue a strike that has been declared illegal by the respective authorities, is liable to a sentence of imprisonment of six months to two years.

The Committee notes the Government’s indications that the above provisions would definitely be amended as a part of the new Penal Code being discussed within the National Assembly. In this regard, the Committee has noted the draft Penal Code which was available on the web site of the National Assembly. The Committee notes with interest that the restrictions governing the expression of political opinions and the participation in strikes contained in sections 522 and 523 of the Penal Code have not been maintained in the draft Penal Code.

With regard to the obligation to work in prison, as set out under the terms of section 62(2) of the Penal Code currently in force, the Committee notes the adoption on 21 November 2003 of Act No. 473 on the penitentiary regime and the execution of sentences, and its implementation regulating Decree No. 16-2004. It notes that the voluntary nature of work by persons sentenced to penalties of imprisonment emerges from a number of provisions contained in these texts. Thus, according to section 77 of Act No. 473, "the express wish of the detainee" constitutes one of the characteristics of participation by a detainee in prison work. Section 176 of Decree No. 16-2004 provides that work is an essential component in the process of re-educating detainees who "voluntarily" perform work. In this regard, the Committee has already referred to section 195 of the Labour Code, by virtue of which those detainees who voluntarily agree to work receive a wage that shall not in any case be lower than the legal minimum rate. Lastly, the Committee also notes that the draft Penal Code has simplified the concept of sentences of imprisonment. Moreover, the draft Code no longer refers to the obligation to work for detainees sentenced to imprisonment who do not have sufficient resources to pay the costs arising out of their imprisonment, - obligation which was set out under the terms of section 61(2) of the Penal Code which is currently in force, and which was at the root of the Committee’s observations concerning the application of the Convention. In view of all of these provisions, the Committee hopes that the draft Penal Code will be adopted very soon and that it will take account of the observations that the Committee has been making for many years concerning the application of the Convention, to the effect that the expression of political opinions and participation in strikes should not be punished by prison sentences involving the obligation to work. The Committee requests the Government to provide a copy of the new Penal Code as soon as it has been adopted.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the 1998 edition of the Penal Code supplied by the Government.

Obligation to work in prison

1.  Referring to the provisions of the Penal Code, the Committee notes that custodial prison sentences may be given in application of sections 522 and 523 for the expression of political opinions and as punishment for illegal strikes. The Committee recalls that under section 195 of the Labour Code (Act No. 185 of 30 October 1996), which concerns work in prison, persons guilty of an offence ("los reos") who agree voluntarily to work shall receive wages which shall not in any case be lower than the legal minimum for the work performed. Nevertheless, on the question of the voluntary or compulsory nature of work in prisons, the Committee notes that under section 61(2) of the Penal Code, persons sentenced to imprisonment may choose one of the forms of work organized in prisons, but only those who have sufficient resources to pay the cost of their prison stay are absolved from the obligation to work. The Committee is therefore bound to reiterate its comments on the following points.

Article 1(a) of the Convention.  2.  In the comments it has been making for over 20 years, the Committee has noted that under section 523(1) of the Penal Code a penalty of from six months to two years’ imprisonment is imposed on any person who organizes or belongs to communist parties, parties with another name that support the same or similar ideas, or any other internationally organized party. Under section 523(2), the same penalty is applicable to any person who assists or participates in the activities of the parties referred to in 523(1), such as assemblies, meetings and the preparation, printing, introduction and distribution of any kind of propaganda in the country. Referring to the explanations given in paragraphs 106-109 and 133-140 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that when the penalties imposed by section 523 can inflict the obligation to work on the convicted person, these provisions are incompatible with Article 1(a) of the Convention since they have an effect of political coercion and are directed at persons who demonstrate their ideological opposition to the established political, social or economic system. The Committee hopes that the necessary measures will finally be taken to bring the legislation into conformity with the Convention on this point and that the Government will indicate the provisions adopted to this end.

3.  In its previous comments, the Committee also referred to section 522 of the Penal Code, under which an incommutable sentence of from six months to two years’ imprisonment is imposed on any person who incites to the non‑observance of the Constitution of the State or attacks the republican and democratic regime established by it or who directly encourages such activities. Referring once again to the explanations provided in paragraphs 133-140 of its abovementioned General Survey, the Committee recalls that 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. Section 522, however, is not limited to such activities but seems to apply to all those who manifest their ideological opposition to the established political system. The Committee requests the Government to indicate the measures taken or envisaged to ensure compliance with the Convention in this respect and, meanwhile, to supply information on the practical application of section 522, including copies of any court decision which illustrates the scope of this provision.

4.  Article 1(d).  The Committee notes the Government’s indication in its report to the effect that there are no penal sanctions imposed for striking. The Committee notes, however, that in the 1998 edition of the Penal Code, section 523(3) of the Penal Code has not been repealed. Under this provision any person who cooperates with or in any way incites anyone to continue a strike that has been declared illegal by the respective authorities is punishable by a sentence of imprisonment of from six months to two years. The Committee, referring to its observation in 1999 under Convention No. 87, notes that sections 389 and 390 of the Labour Code impose compulsory arbitration when, inter alia, 30 days have elapsed from the declaration of legality of the strike and that this obligation is not limited to cases laid down in section 247 of the Code (according to which the exercise of the right to strike in public services or services that are of public interest may not be extended to situations which endanger the life and personal safety of the whole or part of the population). In addition, under the terms of section 53 of the Regulation on Trade Union Associations (Decree No. 55‑97), in industrial disputes, federations and confederations shall limit their intervention to providing advice and moral and economic support required by striking workers, implying that a strike declared by a federation or trade union confederation is illegal. Referring to the explanations in paragraphs 120-132 of its abovementioned General Survey, the Committee hopes that the necessary measures will be taken in regard to section 523(3) of the Penal Code, read in conjunction with sections 389 and 390 of the Labour Code and section 53 of the Regulation on Trade Union Associations to ensure compliance with Article 1(b) of the Convention which prohibits penalties involving compulsory labour as a punishment for having participated in strikes. The Committee requests the Government to supply information on measures taken to this end.

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

The Committee notes the information contained in the Government's report. It requests the Government to provide information in respect of the practical application of the provisions relative to sanctions which are applied in the event of strike action (Article 1(d) of the Convention) and the conditions under which these sanctions could be declared illegal.

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

1. Article 1(a) and (d) of the Convention. In previous comments, the Committee has referred to a series of provisions in the Penal Code and the Labour Code under which certain activities related to the expression of political opinions and opposition to the established political order are punishable by imprisonment. In its previous direct request, the Committee requested the Government to indicate whether the system of voluntary labour set out in the basic document for penal reeducation (sections 2(c) and 39) was applicable to persons sentenced to penalties of imprisonment.

The Committee notes the information provided by the Government in its report to the effect that the National Assembly adopted the text of the new Labour Code, but that it has not yet come into force as a result of a presidential veto on some of its provisions. The Government states that section 201 of the new Code establishes the voluntary nature of work performed by criminals.

The Committee requests the Government to provide information on the coming into force of the new Labour Code, and particularly on the provisions respecting work in prisons. It also requests it to provide a copy of the above when it has been adopted. The Committee also requests the Government to provide copies of the legislation in force respecting public security and public order.

2. The Committee notes with interest the amendment to Article 96 of the National Constitution which, in its new form, prohibits any form of forced recruitment to the Nicaraguan army and the national police force.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. Article 1(a) and (d) of the Convention. In previous comments the Committee has referred to section 523 of the Penal Code, under which an incommutable penalty of from six months to two years' imprisonment is inflicted on any person who organizes or belongs to communist parties, parties with another name that support the same or similar ideas or any other internationally organized party, and on any person who assists or participates in the activities of the parties referred to, with assemblies, meetings and the preparation, printing, introduction and distribution of any kind of propaganda in the country. Under subsection 3 of section 523 the same penalty can be imposed on any person who cooperates or in any way encourages the continuation of a strike that has been declared unlawful. The Committee has also referred to sections 224, 225(3), 227, 228, 314 and 320 of the Labour Code which impose restrictions on the peaceful exercise of the right to strike, which are enforceable by penalties of imprisonment pursuant to section 523 of the Penal Code.

The Committee has also referred to the following sections of the Penal Code: section 261 which provides for an incommutable sentence of imprisonment of from two months to two years for newspaper owners, speakers, lecturers and artists who, in the exercise of their profession, clearly and directly incite the people to commit the offences of riot or disorder (section 260(c)(1)); disseminate doctrines obviously contrary to morality, the democratic foundations of the State and public order (section 260(c)(3)); maliciously invent or distort news, events or ideas, to the moral or physical detriment of the nation, a community or a given person or persons (section 260(c)(4)). Section 522 of the Penal Code, under which an incommutable sentence of from six months to two years' imprisonment is imposed on any person who incites to the non-observance of the Constitution of the State or attacks the republican and democratic regime established by it or who directly encourages such activities. Section 510 of the Penal Code under which persons who, without rebelling against the Government or refusing to acknowledge the departmental or local authorities, meet in disorder to call on the authorities with violence, shouts, insults or threats to dismiss some subordinate official, release some prisoner or punish an offender and are guilty of the offence of riotous assembly are liable to a sentence of from four to six months' imprisonment. Under section 512, conspiring to commit the offence of riotous assembly can be punished with imprisonment of from one to four months.

The Committee takes note of the Government's statement in its report that it is aware of the discrepancy between section 523 of the Penal Code and the labour legislation, and that the Committee's comments will therefore be referred to the Legislative Assembly so that it can examine the possibility of repealing these provisions.

The Committee notes Order No. 069-86, sent by the Government, which is the basic text on penal rehabilitation within the national penitentiary system, sections 2(c) and 39 of which establish the voluntary nature of work performed by inmates. The Committee asks the Government to indicate whether the system provided for in the basic text on penal rehabilitation applies to persons sentenced to imprisonment.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes with satisfaction that Act No. 66 of 19 October 1989 repeals Decree No. 1074 respecting the maintenance of public order and security, which provided for penalties of imprisonment and public works to be imposed on persons who disseminated, by speech or by writing, certain political opinions.

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

The Committee asks the Government to provide information on the following points which were raised in its previous direct request and on which no information was supplied in the Government's report.

1. Section 261 provides for an incommutable sentence of imprisonment of from two months to two years for newspaper owners, speakers, lecturers and artists who, during the exercise of their profession, clearly and directly incite the people to commit the offences of riot or disorder (section 260(c)(1)); disseminate doctrines obviously contrary to morality, the democratic foundations of the State and public order (section 260(c)(3)); maliciously invent or distort news, events or ideas, to the moral or physical detriment of the nation, a community or a given person or persons (section 260(c)(4)). Section 522 of the Penal Code, under which an incommutable sentence of from six months to two years' imprisonment is imposed on any person who incites to the non-observance of the Constitution of the State or attacks the republican and democratic regime established by it or who directly encourages such activities. Section 510 of the Penal Code, under which persons who, without rebelling against the Government or refusing to acknowledge the departmental or local authorities, meet in disorder to call on the authorities with violence, shouts, insults or threats to dismiss some subordinate official, release some prisoner or punish an offender and are guilty of the offence of riotous assembly are liable to a sentence of from four to six months of imprisonment. Under section 512, conspiring to commit the offence of riotous assembly can be punished with imprisonment of from one to four months.

The Committee requests the Government to review all these provisions in the light of the Convention, since the penalties of imprisonment provided for in them involve the obligation to work, and to indicate the measures taken or under consideration to ensure the observance of the Convention in this matter.

2. Section 53 of the Penal Code provides that the main penalties include various forms of imprisonment (presidio, prisiòn, arresto and confinamiento). The Committee requests the Government to indicate whether, like the penalty of imprisonment mentioned above (arresto), the other penalties provided for in section 53 involve compulsory labour. The Committee also requests the Government to supply copies of the legislation relating to the prison system, particularly with regard to the "productive occupation" mentioned in section 39 of the Constitution.

Furthermore, the Committee asks the Government to indicate whether the legislation in force provides for the exemption from compulsory labour of those sentenced for political offences, and to supply copies of the relevant texts.

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

The Committee notes with interest that the constitutional rights and guarantees that had been suspended by Decree No. 245 concerning the state of emergency have been restored since August 1987.

1. Article 1(a) and (d) of the Convention. In previous comments, the Committee has referred to section 523 of the Penal Code, under which an incommutable penalty of from six months to two years of imprisonment is inflicted on any person who organises or belongs to communist parties, parties with another name that support the same or similar ideas or any other internationally organised party, and on any person who assists or participates in the activities of the parties referred to, with assemblies, meetings and the preparation, printing, introduction and distribution of any kind of propaganda in the country. Under subsection 3 of section 523 the same penalty can be imposed on any person who co-operates or in any way encourages the continuation of a strike that has been declared illegal. The Committee has also referred to sections 224, 225(3), 314 and 320 of the Labour Code that impose restrictions on the peaceful exercise of the right to strike, restrictions that are enforceable, under section 523 of the Penal Code, with penalties of imprisonment.

The Committee has also referred to sections 227 and 228 of the Labour Code relating to the prohibition of strikes in the public service and the essential services.

The penalty of imprisonment involves the obligation to work by virtue of section 61(2) of the Penal Code.

The Committee takes note of the Government's statement that since the triumph of the Sandinist people's revolution, actions constituting a violation of section 523 are no longer offences and that even the Council of State includes representatives of communist or Marxist parties.

The Government adds that there are proposals to reform the Penal Code, which include the repeal of provisions such as section 523.

The Committee hopes that section 523 of the Penal Code will be repealed shortly so as to dispel any uncertainty as to its application and thus to bring national legislation into conformity with the Convention, so that positive law reflects the existing practice described by the Government.

2. In earlier comments, the Committee referred to section 4(b) of the Act on the maintenance of public order and security (Decree No. 1074), which provides for penalties of imprisonment and public works to be imposed on those who disseminate, by speech or by writing, proclamations or manifestos against security and national integrity, public safety and the national economy, the defence of public order and the prevention of crime, and the legitimately established authorities.

The Committee noted that the penalty of public works provided for in this section had been abolished by a Decree of 3 November 1983. The Committee none the less observed that if the sentence of imprisonment involves compulsory labour, as stated by the Government in one of its reports, section 4 of Decree No. 1074 was still incompatible with the Convention.

The Committee notes that in its last report, the Government indicates that since the penalty of public works has been abolished, the means of imposing compulsory labour has now been eliminated from the penal legislation.

The Committee recalls that, under Convention No. 29, forced or compulsory labour means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily; and that States that have ratified Convention No. 105 are under the obligation not to make use of any form of forced or compulsory labour as a punishment for holding or expressing political views.

The Committee observes that the penalty of imprisonment provided for in section 4(b) of Decree No. 1074, which involves compulsory labour, is compatible with the Convention if applied to persons expressing certain political opinions or views. The Committee therefore asks the Government to re-examine the above provision in the light of the Convention, to take the necessary measures to ensure compliance with the Convention and to report on the progress made in this connection.