Solicitud directa (CEACR) - Adopción: 2005, Publicación: 95ª reunión CIT (2006)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - San Marino (Ratificación : 2000)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1 of the Convention. Measures to secure the prohibition and elimination of the worst forms of child labour. The Committee notes the Government’s information that no case of child labour has ever been reported in the Republic of San Marino, owing to the particular social situation of the Republic, which has a limited territory and is characterized by high levels of economic and social growth and of school attendance. It takes due note of the Government’s statement that in spite of the extremely small size of the country, the Republic of San Marino has a number of regulatory instruments to prohibit and eliminate child labour, as witnessed by its adhesion to several international agreements and its national legislation. With regard to the national legislative framework, the Committee notes the Government’s information that the Penal Code and the "Act for the repression of the sexual exploitation of minors" No. 61 of 2002 provide for the prohibition of slave trading and trafficking, child prostitution, child pornography and forced labour. The Committee requests the Government to continue providing a general overview of the immediate and effective measures taken or envisaged to secure the prohibition and the elimination of the worst forms of child labour as a matter of urgency.

Article 3. Worst forms of child labour. Clause (a). 1. Slavery or practices similar to slavery, such as debt bondage, serfdom and forced or compulsory labour. The Committee notes the Government’s information that section 167 of the Penal Code punishes anyone who reduces another person to slavery or holds a person in slavery. It also notes that section 168 penalizes the offence of slave trafficking and trading. The Committee notes that under the terms of section 169 of the Penal Code, anyone who deprives a person of liberty is guilty of an offence.

2. Sale and trafficking of children. The Committee notes that section 268 of the Penal Code, which incorporates offences against public morality, penalizes the offence of trafficking for the purposes of prostitution abroad. The penalty is increased if the person who commits the offence: (1) has acted in connection with organizations operating in different States; or (2) has acted with violence, threats or deception or has committed the offence of kidnapping. The Committee requests the Government to provide information on the practical application of the above provision.

3. Compulsory recruitment of children for use in armed conflict. The Committee notes the absence of information in the Government’s report on this point. However, it notes that by virtue of section 1 of Act No. 100 of 1997, Modifica al regolamento del Corpo di Gendarmeria and section 5 of the Act No. 132 of 1987, Regolamento del nucleo uniformato della Guardia di Rocca, 18 years is the minimum age to be recruited in San Marino military units. The Committee also notes the information contained in the report to the Commission on Human Rights of the Child (CRC/C/8/Add.46) that in San Marino there is no compulsory military service.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes the Government’s indication that section 171 of the Penal Code punishes the inducing or coercion of another person to engage in sexual practices by force, threat, deception or other similar means. It notes that section 269 penalizes anyone who induces other people into prostitution. The Committee notes that the Penal Code also provides for the offences of exploiting prostitution (section 271) and abetting prostitution (section 272). The Committee notes the Government’s statement that following the entry into force of Act No. 61 of 2002, sections 177bis, 177ter and 177quater were added to the Penal Code. It notes that section 177bis introduces the offence of exploiting child prostitution. This provision penalizes anyone who performs sexual acts with someone under the age of 18 years, in exchange for money or any other financial gain. The Committee also notes that section 177quater penalizes anyone who organizes or promotes travels, meetings and transfers abroad designed to facilitate the undertaking of the sexual activities mentioned in section 177bis.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that section 177ter of the Penal Code, as amended by Act No. 61 of 2002, provides for the offence of child pornography. The offence includes the use of minors (persons under the age of 18 years) in shows, performances or pornographic material, in which the minor is depicted as partaking in explicit sexual acts for the purposes of sexual stimulation. It also covers the onerous or gratuitous trading or supply of pornographic material, the advertisement, distribution and broadcasting, including through the Internet, of pornographic material or information aimed at the incitement or sexual exploitation of minors.

Clause (c). Use, procuring or offering of a child for illicit activities. 1. Use, procuring or offering of a child for the production and trafficking of drugs. The Committee notes that the Government’s report provides no indication of any legislation prohibiting this worst form of child labour. It notes, however, that, according to the Committee on the Rights of the Child (CRC/C/8/Add.46; paragraphs 107 and 108), this issue is governed by Law No. 139 of 26 November 1997, "Supplements to the Provisions of the Penal Code and of the Code of Penal Procedure on Offences related to Narcotic Drugs, Alcoholic Drinks, Dangerous or Harmful Substances, Psychotropic Substances". This law applies to people of any age, though some provisions contain specific reference to minors. The Committee asks the Government to supply a copy of this text.

2. Causing or allowing children to be used for begging. The Committee notes the Government’s information that section 283 of the Penal Code penalizes anyone who makes a living from begging. This section provides that the penalty shall be increased when persons under the age of 18 years or disabled persons are incited or recruited to beg.

Articles 3(d) and 4, paragraph 1. Hazardous work. The Committee notes the Government’s indication that the Employment Commission established in its resolution No. 1 of 25 October 2002 (Delibera n.1 del 25 Octubre 2002) a list of types of hazardous work. The resolution of 2002 provides that no authorization shall be given by the Employment Office (Ufficio di Collocamento) to a worker under 18 years of age to perform tasks considered at high risk with regard to safety and health standards at the workplace. High-risk tasks include: work at dangerous heights or in confined spaces; work involving the transport of heavy loads; tasks carried out in unhealthy environments with exposure to dangerous substances, agents, or processes, temperature, noise or vibration prejudicial to the minors’ health; work activity in gambling places, night-time erotic entertainment; and commercial undertakings of products forbidden for sale to minors under 18.

Article 4, paragraph 2. Determining where the types of hazardous work exist. The Committee notes that the Government’s report provides no information on the measures taken to determine where the types of work exist which, by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of young persons. The Committee reminds the Government that Article 4, paragraph 2, of the Convention provides that the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of hazardous work so determined exist. The Committee therefore requests the Government to indicate the measures adopted or envisaged, after consultations with the organizations of employers and workers concerned, to specify where the types of work so determined exist.

Paragraph 3. Periodical examination and revision of the list of hazardous types of work determined. The Committee notes the Government’s information, with regard to resolution No. 1 of 2002, that the administrative resolution was considered to be the most appropriate instrument for the purpose of implementing the Worst Forms of Child Labour Recommendation, 1999 (No. 190), because it will be possible to adopt any future amendments or supplements that may become necessary with greater ease and simplicity. The Committee requests the Government to provide information on any eventual revision of the list and to provide a copy of such a revised list.

Article 5. Monitoring mechanisms. The Committee notes the Government’s indication that the International Labour Office is the authority primarily responsible for monitoring the actual application of the provisions of the Convention in question. The Office issues employment authorization documents provided that the relevant requirements are met, including those relating to the minimum working age and compulsory education. In addition to those carried out by the International Labour Office, inspections are also conducted by the Employment Commission, which is responsible for monitoring the implementation of labour legislation and standards, in collaboration with the Labour Inspectorate. The Committee notes the Government’s statement that the monitoring system established by Act No. 31 of 18 February 1998, "Framework Act on Occupational Safety and Health" is applicable to the recruitment of minors for hazardous work. It also notes the Government’s information that this Act not only establishes the employer’s responsibilities within the enterprise and the health checks to be carried out by the enterprise’s occupational health physician, but also provides for a public monitoring system run by the Environment Hygiene Service, which is under the authority of the Civil Protection Service. Any violation is referred to the judicial authority, which proceeds according to the provisions of the Penal Code. The Committee asks the Government to provide information on the inspections carried out by the International Labour Office and the Employment Commission regarding infringements of the national provisions giving effect to the Convention and to supply a copy of any reports and documents showing the functioning and accomplishments of these mechanisms in monitoring the worst forms of child labour. It also asks the Government to indicate the consultations held with the employers and workers’ organizations in accordance with the provisions of this Article.

Article 6. Programmes of action to eliminate, as a priority, the worst forms of child labour. The Committee notes the Government’s information that section 11 of the "Declaration of the rights of citizens and of the fundamental principles of the laws of San Marino", as modified by Decree No. 79 of 8 July 2002, states that the Republic has amongst its main objectives the promotion of the personal development of young people through education, employment, sporting and recreational activities. This development is essential to prepare young people for the free and responsible exercise of fundamental rights. The Committee requests the Government to provide information on the programmes of action adopted or envisaged to eliminate, as a priority, the worst forms of child labour. It also requests the Government to indicate the consultations held with the relevant employers’ and workers’ organizations and, if appropriate, the views of other concerned groups taken into consideration.

Article 7, paragraph 1. Penalties. The Committee notes that section 167 of the Penal Code punishes the offence of reducing to servitude or supporting slavery by penalties of imprisonment of between six and 14 years and interdizione of between two to five years. It notes that, according to section 82 of the Penal Code, people punished by interdizione may be disqualified from holding public office, deprived of their civil and political rights, debarred from a profession, divested of parental authority or guardianship, deprived of their capacity to make a will or of any public authorization or license including the enjoyment of all related right. The Committee notes that, by virtue of section 168 of the Penal Code, slave trafficking and trading is punishable by imprisonment of between 10 and 20 years and interdizione of between two and five years. The Committee notes the Government’s statement that the crimes provided by sections 167 and 168 are punished even if committed outside the territory of San Marino. By virtue of section 177bis, the offence of exploiting child prostitution is punishable by imprisonment of between six months and three years and interdizione of between nine months and two years It further notes that the various offences constituting "child pornography" grouped under section 173bis are sanctioned by imprisonment of between two and six years and interdizione of between one and three years; the onerous or gratuitous trading or supply of pornographic material is punished by detention of between 15 days and two months and by interdizione of between six months and one year. The Committee notes that, by virtue of section 177quater of the Penal Code, anyone who organizes or promotes travels designed to facilitate the undertaking of child prostitution is liable to imprisonment of between six months and three years and interdizione of between one and three years. It also notes that section 268 of the Penal Code punishes the offence of trafficking for the purposes of prostitution abroad by penalties of imprisonment of between four to ten years and interdizione of between two and five years; section 269 penalizes the offence of incitement into prostitution by imprisonment of between two and six years and interdizione of between one and three years. The Committee notes that the penalty is increased if the act is committed against someone under the age of 18 or someone with illness or mental handicap. The Committee notes that section 5 of Act No. 61 of 30 April 2002 states that the provisions of sections 177bis, 177ter and 177quater and section 269 of the Penal Code, in case of offences committed against someone under the age of 18, also apply when the act is committed abroad by or against a citizen of San Marino. In these cases, the guilty party is not allowed to avail himself/herself of the fact he/she ignored the victim’s age. By virtue of section 272, the offence of abetting prostitution is punished by imprisonment of between three months and one year. The Committee requests the Government to provide information on the practical application of the penalties laid down in the relevant provisions.

Paragraph 2. Effective and time-bound measures. Clause (a). Prevent the engagement of children in the worst forms of child labour. 1. The Committee notes the Government’s indication that, with regard to the worst forms of child labour, the Republic of San Marino has adopted a preventive approach, undertaking a number of social and cultural initiatives to eliminate poverty, which forms the basis of the phenomenon addressed by this Convention. The Committee asks the Government to provide information on these initiatives and on the manner in which they contribute to prevent the engagement of children in the worst forms of child labour.

2. The Committee notes the Government’s report that section 11 of the "Declaration of rights" provides for free education at all levels of compulsory schooling and a substantial financial contribution for all those who wish to continue their studies in the Republic of San Marino or abroad. It also notes that, according to section 8 of Act No. 137 of 20 November 1990, "Extension of the compulsory schooling to the age of 16", and section 8 of Act No. 21 of 12 February 1998, education is compulsory in San Marino until the age of 16 years and consists of ten years. The Committee notes that those having parental responsibilities or legal guardianship shall oversee the effective fulfilment of this obligation. It also notes that section 8 of Act No. 137 of 1990 states that employers are not allowed to engage young persons under the age of 18 who have not been released from compulsory schooling or, in any case, young persons who are under 16 years of age.

Clause (b). Direct assistance for the removal of children form the worst forms of child labour and for their rehabilitation and social integration. The Committee notes the Government’s information that Act No. 61 of 30 April 2002, established to deal with the increase in the sexual exploitation of minors, has considerably widened the scope of action of the judicial and administrative authorities responsible for eliminating the sexual exploitation of minors. It notes the Government’s statement that section 6 of the Act of 2002 provides that the Law Commissioner (Commissario della Legge), in his or her capacity as the judge responsible for guardianship matters Giudice Tutelare, after having received notification of one of the offences considered in the Act, in agreement with the Service for Minors and in order to protect the personal and mental welfare of the minor, must initiate an investigation and adopt all the necessary measures to protect, assist and rehabilitate the minor. If necessary, the Giudice Tutelare will appoint a guardian to offer supervision and assistance during the process of social reintegration. The Committee further notes that, according to the Government, section 7 of the same Act provides that during investigations designed to identify and eliminate the offences provided by the Act or to collect evidence, the Law Commissioner can give specialized agents from the police force the authorization to: simulate the purchase of pornographic material; be involved in intermediary activities; take part in touristic activities (at home and abroad) related to the sexual exploitation of minors; use coverage information to set up Internet sites; participate in exchanges on the Internet. The Committee notes the Government’s indication that main and most far-reaching investigative powers granted by the Act of 2002 do not, however, override the requirement to protect the psychophysical integrity of the minor, which is still a priority. According to the Act of 2002, for this purpose it is provided that any confrontation between the minor and the accused or witnesses take place through mirrored glacé or with the use of an intercommunication system or other technical equipment that guarantees the privacy of the minor.

The Committee notes the absence of information in the Government’s report on effective and time-bound measures: (d) identifying and reaching out to children at special risk; and (e) taking into account the special situation of girls. The Committee requests the Government to supply information on actions taken or envisaged, as required under Article 7(2)(d) and (e) of the Convention, to prevent the potential occurrence of the worst forms of child labour.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes that San Marino ratified the United Nations Convention on the Rights of the Child in 1991. The Committee asks the Government to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education, in conformity with these provisions of the Convention.

Part III of the report form. The Committee notes the Government’s indication that no sentences have been handed down by the judicial tribunals concerning the application of Convention No. 182. It asks the Government to provide information in its future reports on any decisions of tribunals which would involve questions of principle relating to the application of the Convention.

Part IV. The Committee notes that the Government has provided no information with respect to this point. It requests the Government to give a general appreciation on the manner in which the Convention is applied in San Marino and to indicate any practical difficulties encountered in the application of the Convention or any factors which may have prevented or delayed action against the worst forms of child labour.

Part V. The Committee notes the Government’s information that no cases of child labour have ever been reported. It asks the Government to supply copies or extracts from official documents including inspection reports, studies and inquiries and to provide information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and sanctions applied. To the extent possible, all information provided should be disaggregated by sex.