Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 29) sur le travail forcé, 1930 - Brésil (Ratification: 1957)

Articles 1(1), 2(1) and 25 of the Convention. “Slave labour”. In the comments it has been addressing to the Government for a number of years on the issue of “slave labour”, the Committee has noted several measures which have been taken by the Government in order to reinforce its legislative and institutional framework to combat this practice, under which many workers continue to be victims of inhuman and degrading conditions, debt bondage or internal trafficking for purposes of labour exploitation. The Committee emphasized, in particular, the adaptation of the legislation to national circumstances through section 149 of the Penal Code, which defines the elements that constitute the crime of “reducing a person to a condition akin to that of slavery”; the activities undertaken by specialized institutions to combat this phenomenon, such as the National Commission to Eradicate Slave Labour and the Special Mobile Inspection Group; and the action of Labour Courts, which have sanctioned persons engaged in these forms of exploitation with fines and have provided for substantial compensation. Noting that all of these actions have failed to be sufficiently dissuasive to prevent certain employers from having recourse to this practice, which remains lucrative, the Committee requested the Government to continue taking action without respite against persons who exact forced labour by adopting measures in the fields of legislation, labour inspection and the judicial authorities. The Committee notes that, following her visit to the country, the United Nations Special Rapporteur on contemporary forms of slavery, including its causes and consequences, addressed recommendations to the Government that are consistent with those made by the Committee in its observations (A/HRC/15/20/Add.4).

(a) Strengthening of the legal framework. In its previous comments, the Committee expressed the hope that the Government would take every measure to expedite the adoption of certain Bills aimed at guaranteeing greater legal security through measures targeting the economic and financial interests of those who exploit slave labour. The Committee noted, in particular, the draft amendment to article 243 of the Constitution (PEC No. 438/2001), authorizing the expropriation, without compensation, of establishments in which the use of slave labour has been identified (the expropriated lands will be consigned to the agrarian reform). It also referred to the draft Law (PLS No. 487/03), which provides a legal basis for the prohibition of persons recognized to have used slave labour from obtaining fiscal benefits and credits, and from participating in public contracts; and Bills (PLS No. 9/04 and PL No. 5.016/5) increasing the penalties applicable to the crime of reducing a person to a condition akin to slavery. The Committee notes that none of these initiatives have yet been adopted and that the Government simply refers to the establishment of a Joint Parliamentary Front, in March 2010, to accelerate the adoption of the constitutional amendment. The Committee therefore reiterates its firm hope that the Government will take all the necessary measures to expedite the adoption of the Bills referred to above and, in particular, those intended to guarantee greater legal security, with a view to increasing the penalties applicable to the crime of reducing a person to a condition akin to slavery.

The Committee recalls that, since 2003, the Ministry of Labour and Employment has established a list to include the names of individuals or entities which have been found responsible, by a definitive administrative decision, for exploiting workers under conditions akin to slavery (“dirty list”). The list, which is updated every six months, is sent to various public administrative services and to banks administering constitutional and regional financing funds so that no financial assistance, grants or public credits are granted to those included on the list (Decree No. 540 of the Ministry of Labour and Employment of 15 October 2004). The Committee noted with concern that the lawfulness and constitutional nature of the list had been contested, and that the courts had upheld appeals by certain employers demanding the removal of their names from the list while awaiting a final decision. While noting that the Government once again indicates in its report that the prevailing jurisprudence in regional labour courts recognizes the legality of the list, the Committee notes that it no longer refers to the Bill to strengthen the legal status of the list. The Committee also notes that the total of persons or entities included on the list in July 2011 was 251, which represents an increase in comparison to July 2009 (175 names) and July 2007 (192 names).

The Committee further notes that the Government has not provided information on the expropriation measures taken by the President of the Republic in relation to establishments that do not fulfil their social purpose and, therefore, would be eligible for agrarian reform (their presence on the list is a factor taken into account for this purpose). The Committee also notes that the Federal Supreme Court has still not ruled on the appeal lodged against the expropriation Decree signed in 2004 by the President of the Republic concerning a property which was declared of social interest for agrarian reform on those grounds.

The Committee considers that the establishment of the “dirty list” and the resulting measures constitute effective tools in combating slave labour, in so far as they are targeted at the economic interests of those who impose forced labour. The Committee hopes that the Government will take the necessary measures to guarantee that the legal status of the list is strengthened in order to avoid any questioning on its legality by offenders. Please also specify the number of cases brought before the courts aiming at the exclusion from the list, as well as the court decisions handed down. The Committee once again emphasizes the importance of adopting the proposed amendment to the Constitution (PEC No. 438/2001) authorizing the expropriation, without compensation, of establishments in which the use of slave labour has been identified.

(b) Strengthening of the labour inspectorate. The Committee emphasizes, once again, the central role of labour inspection, and particularly of the Special Mobile Inspection Group (GEFM), in combating slave labour, as well as the need to guarantee that adequate human and material resources are provided to allow labour inspectorates to move quickly, efficiently and safely throughout the country. The Government indicates in its last report that, in 2009, the GEFM consisted of eight teams specialized in slave labour working throughout the entire country, compared with five teams in July 2010. It also refers to the organization, in 2010, of a new public competition to fill 234 vacancies in the labour inspection services across the country and that 82 labour inspectors recruited in 2006–07 have been assigned to Mato Grosso, one of the regions most affected by slave labour. The Committee notes this information as well as the number of inspections conducted by the GEFM, which have remained stable (143 interventions in 2010, compared with 156 in 2009). While observing that the Government has been regularly organizing competitions to increase the number of labour inspectors, the Committee notes with concern the considerable reduction on the number of GEFM teams. The Committee recalls that the inspections carried out by the GEFM result not only in the release of workers from situations of forced labour, but also provide evidence for civil and criminal action against perpetrators. Taking into consideration the significant geographical area to be covered by labour inspection, as well as the absence of information indicating any decrease in the use of slave labour in the country, the Committee requests the Government to take the necessary measures to ensure that the GEFM has at its disposal adequate trained personnel and material resources allowing it to carry out its activities effectively.

(c) Imposition of effective penalties. The Committee recalls that the effective imposition of penalties for violations of labour legislation is an essential element in combating forced labour, as it is characterized by the concourse of a number of violations of labour legislation which must be punished as such. Moreover, taken as a whole, these violations constitute the criminal offence provided for in the Penal Code of “reduction of a person to a condition akin to slavery”, which in itself gives rise to specific penalties.

Administrative sanctions. In its previous comments the Committee has noted the complementary role played by labour inspection, labour prosecutors and labour courts, resulting in the imposition of substantial administrative penalties on those who make use of forced labour. It noted, in particular, the fines imposed, the reinstatement of the rights of released workers and the conviction of perpetrators to pay compensation for the material damages suffered by workers and for “collective moral damages” caused to the society as a whole. The Committee requests the Government to continue taking measures to reinforce the means of action available to the authorities responsible for imposing such sanctions in order to ensure that fines and compensation are effectively collected. Please also provide information on the measures taken with a view to continuing to exert economic pressure on those who impose forced labour, including the imposition of dissuasive fines and compensation, the removal of access to public subsidies and financing, and, particularly, the expropriation of lands where forced labour is found.

Penal sanctions. In its previous comments the Committee noted that, by confirming the competence of federal courts to prosecute those found guilty of reducing a person to a condition akin to slavery (article 149 of the Penal Code), the Federal Supreme Court (STF) brought an end to the conflicts concerning jurisdiction, which had prevented or delayed the trial of many perpetrators. The Committee expressed the hope that this decision, as well as the practice followed by the Office of the Attorney-General of the Republic of bringing those cases before the competent jurisdiction, would lead to the conviction of those responsible for such crimes.

In its report, the Government refers once again to two court decisions of 2008 imposing prison sanctions. It indicates that the Office of the Attorney-General of the Republic has initiated prosecutions against 103 persons in 2007 and 31 in 2008. The Committee notes with regret the lack of information in the Government’s report on the number of criminal proceedings accepted by the federal criminal courts, as well as the number of convictions resulting therein. The Committee observes that, according to statistics available on the website of the Office of the Attorney-General of the Republic, the number of final convictions listed is very low (nine rulings and 15 convicted persons between 2001 and 2010). It notes, for example, that in the State of Mato Grosso, 71 criminal proceedings were initiated between 2001 and 2010, yet only one conviction was obtained. The Committee observes nevertheless that, as a result of action undertaken by the GEFM, 39,180 workers found in a situation akin to slavery were released between 1995 and 2010, and that new names have been regularly incorporated into the “dirty list” (the July 2011 list contains over 200 names). The Committee requests the Government to provide information on the measures taken to ensure that those found in violation of section 149 of the Penal Code, are promptly prosecuted. Please also indicate the difficulties which are preventing the conviction by federal criminal courts of persons who subject workers to conditions akin to slavery, as well as the measures taken to overcome them. The Committee recalls in this regard that, according to Article 25 of the Convention, really effective penalties should be imposed on those who have imposed forced labour.

(d) Reintegration of victims. The Committee previously highlighted the importance of providing material and financial support to victims in order to prevent them from returning to a situation of vulnerability in which they would be prone to be exploited under forced labour conditions. It notes that, in its report, the Government again refers to the same measures and programmes to promote the integration of released workers: the granting of unemployment benefit for a limited period of time (three months); the priority inclusion of these workers in the federal programme for the income redistribution (Bolsa Família) and access to the literacy programme (Brasil alfabetizado). Moreover, a pilot project for the promotion of employment in rural areas particularly affected by slave labour was set up, within the context of the national employment system. The Committee requests the Government to continue providing information on the measures adopted for the reintegration of victims of forced labour and the results achieved. Please also provide information on the measures adopted to raise the awareness of workers from the regions most affected by forced labour on the risks and consequences of such practice.