Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Kirguistán (Ratificación : 1992)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - Kirguistán (Ratificación : 2020)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legal and institutional framework, and law enforcement. The Committee previously noted that a National Action Plan to combat trafficking in persons for 2017–2020 had been drawn up and submitted to the Government for approval. The Committee also noted the Government’s indication that more than 1.1 million Kyrgyz nationals who were residing in foreign countries as labour migrants were potential victims of trafficking. In this regard, the Government had developed strong cooperation with the Commonwealth of Independent States (CIS), including the implementation of comprehensive joint, coordinated, inter-agency preventive and investigative measures and special operations to combat trafficking in persons. The Committee further noted that a number of resource books on trafficking in persons had been prepared for law enforcement agencies and distributed to the territorial subdivisions.

The Committee notes the Government’s indication in its report that the Ministry of Internal Affairs continually works to strengthen cooperation with the law enforcement agencies of foreign states to ensure identification and suppression of channels for trafficking in persons and to exchange information. The Committee notes training on combating trafficking in persons provided for law enforcement and customs officers, issuing of manuals for healthcare and educational professionals, and awareness-raising activities pursuant to the National Action Plan to combat trafficking in persons for 2017–2020. The Committee also notes the establishment of the coordination councils for preventing and combating trafficking in persons in all regions of Kyrgyzstan. The Government further indicates that in 2018, under section 124 criminalizing trafficking in persons of the Penal Code of 1997 17 cases were recorded, nine of which were prosecuted, whereas there were four cases of prosecution in 2017 and eight cases of prosecution in 2016. The Committee further notes that the new Penal Code entered into force on 1 January 2019 and that section 171 prohibits trafficking in persons. The Committee requests the Government to continue to take the necessary measures to prevent, repress and combat trafficking in persons. It also requests the Government to supply statistical data on the application of section 171 of the Penal Code of 2019 in practice, including the number of infringements reported, investigations, prosecutions, convictions and penal sanctions.

2. Protection of victims. The Committee previously noted the Government’s indication that the Ministry of Internal Affairs had drawn up a draft list of criteria for identifying victims of trafficking with a view to introducing clearer official criteria for use in their formal classification. The Government also stated that the criminal investigation directorate of the Ministry of Internal Affairs had started to develop guidance on a national referral scheme for victims of trafficking. Informational and educational work had been conducted to assist victims of trafficking, in cooperation with international and non-governmental organizations, including the setup of a free telephone hotline. The Committee also noted that the Ministry of Internal Affairs, in cooperation with the International Organization for Migration (IOM) in Bishkek and a partner network of non-governmental organizations, had provided assistance to victims of trafficking, including medical, legal, psychological and reintegration support.

The Committee observes that pursuant to the National Action Plan to combat trafficking in persons for 2017–2020, the Government adopted Decree No. 493 of 19 September 2019 on a national referral mechanism for victims of trafficking. In particular, the national referral mechanism has established the criteria for the identification of victims as well as the instructions on social rehabilitation provided to victims of trafficking in persons (the instructions). The Committee notes that according to the instructions, a competent authority prepares an individual programme for a victim, which determines, inter alia, the types of assistance to be provided. Such assistance can include legal, medical and psychological services, provision of a shelter, vocational training, and support in employment. The Committee further observes the adoption of the regulations on the organization of shelters and the procedure for their operation, management, financing and monitoring for victims of trafficking in persons (Government Decree No. 101 of 5 March 2019). The regulations provide for the establishment of shelters, conditions for stay, and types of assistance to victims of trafficking. The Committee requests the Government to continue its efforts with regard to the identification of victims of trafficking in persons for purposes of both sexual and labour exploitation, and to ensure that appropriate protection and assistance is provided to such victims. It further requests the Government to supply information on the measures taken and results achieved in this regard, including the number of victims who have been identified and have benefited from such protection.

Article 2(2)(a). Compulsory military service. Alternative service. The Committee previously noted that according to the Act on universal compulsory national service for Kyrgyz citizens: military and alternative service of 9 February, 2009 (the Act of 2009), alternative service may be performed by citizens of Kyrgyzstan instead of military service on grounds of their religious beliefs or family status. The Committee underlined that, under Article 2(2)(a) of the Convention, compulsory military service is excluded from the application of the Convention only where conscripts are assigned to work of a purely military character. There are, however, specific circumstances in which a non-military activity performed within the framework of compulsory military service or as an alternative to such service remain outside the scope of the Convention. In this regard, in the 2012 General Survey on the fundamental Conventions, paragraph 275, the Committee recalled that, the exemption of conscientious objectors from compulsory military service, coupled with an obligation to perform an alternative service, is a privilege granted to individuals on request, in acknowledgement of freedom of conscience. In examining whether it is a privilege granted to individuals on their request or whether, on the contrary, national service is being used as a means of pursuing economic and social development through the use of compulsory labour, due account should be taken of the number of persons concerned and the conditions in which they make their choice.

The Committee notes the Government’s indication that section 32 of the Act of 2009 sets out a limited list of the grounds for performance of alternative service instead of military service. In particular, such grounds relate to religious beliefs or family status. In addition, according to sections 16 (2) and 32 of the Act of 2009, conscripts who have not been despatched to a military unit due to meeting a conscription quota have a right to perform alternative service upon their written request. Otherwise, such conscripts will be called up for military service in the next conscription. In accordance with section 1 of the Act of 2009, a conscript performs socially useful work considered as an alternative service in his free time from work or study. The types of socially useful work performed by conscripts are determined by the executive bodies of local self-government in agreement with the local military administration. The number of hours for the performance of social useful work is 108, whereas the duration of the alternative service is 18 months (section 32(2)(4) of the Act of 2009). The Committee requests the Government to provide information on the number of persons involved in alternative service, as compared to the number of those performing their mandatory military service.

Article 2(2)(c). Prison labour. The Committee previously noted that according to section 27 of the Internal Rules for Prisons, approved by Order No. 604 of 23 September 2011, prisoners may be assigned to work outside the settlement grounds, but within its general vicinity. The Committee also noted that the provisions governing the relationship between the prison administration, prisoner and employer with regard to the employment of prisoners serving sentences in prison settlements are set out in the Instructions on the procedure and conditions for serving sentences in prison settlements within the Kyrgyz penitentiary system, approved by Government Decree No. 154 of 27 March 2013. The Committee recalled that Article 2(2)(c) of the Convention strictly prohibits prisoners from being hired to, or placed at, the disposal of private enterprises. The work of prisoners for private companies is only compatible with the Convention where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or to the menace of any penalty, by giving their formal, free and informed consent to work for private enterprises.

The Committee observes that the Criminal Executive Code of 2019 and the Rules of the internal order of correctional institutions of the penal system of the Kyrgyz Republic, approved by Government Decree No. 379 of 22 August 2018, govern the use of the labour of convicted persons in correctional institutions. The Committee notes the Government’s information that according to section 103 of the Criminal Executive Code, all convicted persons are obliged to work in the locations and jobs determined by the prison administration. In particular, convicted persons perform work at enterprises of correctional institutions, state organizations, and organizations of other forms of ownership located inside or outside correctional institutions. The Committee observes that as per section 183 of the Rules, convicted persons perform paid work under an employment contract. In addition, the written consent of a convicted person is required to do maintenance work in correctional institutions (section 186 of the Rules). With respect to prison settlements, the Committee notes that according to section 58 of the Instructions on the procedure and conditions for serving sentences in prison settlements within the Kyrgyz penitentiary system of 2013, a convicted person can be hired by a private entity only upon his/her written consent. The Committee observes that apart from prison settlements, convicted persons may also perform compulsory work in other correctional institutions, particularly corrective settlements and prisons (section 73 of the Criminal Executive Code). The Committee requests the Government to indicate whether convicted persons who work inside or outside corrective settlements and prisons for a private entity do so with their formal, free and informed consent.

Article 2(2)(d). Legislation concerning cases of emergency. In its previous comments, the Committee noted that article 23(3) of the Constitution of 2010 provides that forced labour is prohibited except for cases of war, natural disasters and other emergencies. Article 15 provides that a state of emergency or martial law in the Kyrgyz Republic may be imposed only in the cases and following the procedures established by the Constitution and constitutional laws. In this regard, the Committee noted that article 64(9)(2) of the Constitution specifies that the President shall give a warning, on grounds specified by constitutional law, of the possibility of introducing a state of emergency and, where necessary, shall introduce a state of emergency in individual localities without prior declaration, providing prompt notification to the Parliament. Article 74(5)(1) specifies that Parliament may declare an emergency in cases and in accordance with the procedure envisaged in the constitutional laws and may approve or repeal presidential decrees on this matter.

The Committee notes the Government’s indication that as per section 10 of the Labour Code, forced labour is prohibited except for cases of emergencies such as the introduction of a state of emergency or martial law, a calamity or threated calamity (fire, flood, famine, earthquake, serious epidemics or epizootic outbreaks), and other situations that would endanger the existence or the normal living conditions of the whole or part of the population. The Committee observes that according to section 3 of the Constitutional Law of 24 October, 1998, No. 135 on the State of Emergency, the state of emergency is introduced in the event of a crisis situation of biological, social or natural/man-caused nature, which pose an immediate threat to the constitutional order, the vital interests of the individual or society, or the normal operation of state and local bodies. Section 7 of the Constitutional Law of 1998 sets out that the Parliament’s or the President’s Decree on the introduction of a state of emergency must indicate, among others, the exact duration of the state of emergency, as well as an exhaustive list of temporary restrictions on the rights and freedoms of citizens and additional obligations. In accordance with section 22(11) of the Constitutional Law of 1998, depending on the specific circumstances, the public authorities may call upon able-bodied citizens to work in enterprises, establishments and organizations, as well as to eliminate the consequences of emergencies. In addition, during the state of emergency, the heads of enterprises, establishments and organizations have the right, if necessary, to transfer employees without their consent to other duties, not specified in the employment contract for a period of up to one month (section 24).