Observation (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 29) sur le travail forcé, 1930 - Allemagne (Ratification: 1956)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Allemagne (Ratification: 2019)

The Committee notes the observations of the International Organisation of Employers (IOE) and the Confederation of German Employers’ Associations (BDA) received on 27 August 2013, as well as the Government’s report.

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Compulsory work of prisoners in privately run workshops. For a number of years, the Committee has been drawing the Government’s attention to the need to adopt appropriate measures to bring the legislation and practice into conformity with the Convention, by ensuring that free and informed consent is formally required for the work of prisoners in privately run workshops in state prisons and that the conditions of work of these prisoners approximate a free labour relationship. The Committee noted that, under section 41(3) of the Act on the Execution of Sentences of 13 March 1976, employment in a workshop run by a private enterprise is to depend on the prisoner’s consent. However, the consent requirement provided for by section 41(3) was suspended by the “Second Act to improve the budget structure” of 22 December 1981, and has remained a dead letter since that time. In its previous comments, the Committee also noted that, since 2006, legislation on penal enforcement came within the competence of the federal states (Länder). It welcomed the model Penal Enforcement Bill presented by ten Länder according to which work would be assigned to prisoners upon their request or with their consent.

The Committee notes, from the information provided by the Government in its latest report, that 13 Länder have adopted their own statutory regulations. Among these 13 Länder, four have adopted penal enforcement acts which no longer provide for a duty to work for prisoners (Brandenburg, Rhineland-Palatinate, Saarland and Saxony). A general obligation for prisoners to work is still in force in 12 Länder (whether under the Federal Prison Act or the newly adopted penal enforcement acts). Furthermore, the Government indicates that, except for three Länder, there remains the possibility of assigning prisoners to work in workshops managed by private enterprises. While the staff of the private enterprises have the right to issue work related instructions, the supervision of prisoners and all decisions related to inmate treatment remain the responsibility of the penal enforcement authority. The Government reiterates that work assigned to prisoners as a consequence of a decision in a court of law is crucial to integration and forms part of social reintegration plans. The Committee notes that, according to the statistics provided for 2013, 62.5 per cent of the average total number of prisoners were employed or in training, out of which 21.36 per cent worked in entrepreneur workshops. The Government further indicates that it has so far been impossible to offer employment to all prisoners willing to work.

The Committee also notes the observations submitted in 2013 by the IOE and the BDA according to which there continued to be a job shortage in prisons and therefore prison authorities welcomed jobs made available by private entities. Prisoners are not forced to work since there are fewer employment possibilities than prisoners who want to work. The IOE and the BDA stress that employment of prisoners in the private sector is compatible with the Convention. Ways in which prisoners can work for the private sector must be found so that prisoners are not deprived of opportunities for their professional reintegration after their release from prison.

The Committee recalls that it has already considered that work by prisoners for private enterprises can be held compatible with the explicit prohibition of the Convention. In such circumstance, necessary safeguards must exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their free, formal and informed consent to work for private enterprises. In such a situation, work of prisoners for private parties would not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is the work performed under conditions which approximate a free labour relationship, including the level of wages (leaving room for deductions and attachments), the extent of social security and the application of regulations on occupational safety and health (see paragraph 60 of the 2007 General Survey on the eradication of forced labour). In this regard, the Committee refers to its previous comments on the low level of prisoners’ remuneration in workshops managed by private enterprises.

The Committee welcomes the adoption in the Länder of Brandenburg, Rhineland-Palatinate, Saarland and Saxony of penal enforcement acts under which prisoners would not be assigned work in private workshops without their consent. The Committee observes that in the 12 remaining Länder the legislative framework – newly enacted penal enforcement acts by federal states or, in their absence, the Federal Prison Act – provides for a general obligation to work of prisoners and, as a consequence, prisoners may be assigned to work in privately managed workshops without their formal consent. The Committee notes in this regard that the average national percentage of prisoners working in entrepreneur workshops has been increasing steadily (12.57 in 2008; 14.94 in 2010; and 21.36 in 2013). Considering that, as stated by the Government, on the one hand, prisoners may gain advantages from the actual performance of work, particularly in respect of their prospects for rehabilitation and, on the other hand, labour demand exceeds labour supply, it should not be difficult in practice to obtain the formal consent of prisoners to work in workshops run by private enterprises. Therefore, the Committee strongly urges the Government to take the necessary measures to ensure that, both in law and practice, work be only assigned to prisoners in private enterprise workshops inside the prison premises with their free, formal and informed consent, and that such consent be authenticated by conditions of work approximating a free labour relationship. The Committee trusts that the Government will be able to provide information on the progress made in this regard and requests it to continue to provide information on the number of prisoners working in entrepreneur workshops inside prison premises and on the level of the remuneration granted to these prisoners and their conditions of employment.

The Committee is raising other matters in a request addressed directly to the Government.