Observación (CEACR) - Adopción: 1996, Publicación: 85ª reunión CIT (1997)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Alemania (Ratificación : 1956)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - Alemania (Ratificación : 2019)

Article 2, paragraph 2(c), of the Convention. The Committee notes the information supplied by the Government in its report received 6 August 1996 on the application of the Convention. It also has noted a request dated 24 April 1996 by the Second Chamber of the Federal Constitutional Court, asking the Committee to explain in detail why an obligation imposed on prisoners to work, for a wage of approximately 1.50 DM per hour, without their consent, in workshops established by private enterprises within prisons violates Article 2, paragraph 2(c), of the Convention.

The Committee recalls that under Article 2, paragraph 2(c), of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is not exempted from the scope of the Convention unless a twofold condition is met, namely "that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations". Thus, the mere fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense with fulfilling the second condition, namely, that the person is not "hired to or placed at the disposal of private individuals, companies or associations".

On this latter issue, the Committee had, in comments addressed to the Government of the Federal Republic of Germany in 1974, taken note of a national court decision which argued that in view of the comprehensive regulation of the working conditions between the penal institution and the employer, and because of the extensive rights of interference and disposal reserved to the institution, there was no "placing at the disposal" of the prisoner within the meaning of Article 2(2)(c), since the enterprise was not entitled to "dispose of" prisoners and deal with them on its own authority. In its comment, the Committee stressed that the provisions of Article 2(2)(c) are not limited to cases where a legal relationship would come into existence between the prisoner and the undertaking, but cover equally situations where no such legal relationship exists. Furthermore, Article 2, paragraph 2(c), makes no distinction between work outside and work inside the prison.

Finally, it should be noted that the prohibition in Article 2(2)(c) of the Convention is not predicated on the sole concept of "placing at the disposal of" but specifically includes the "hiring to" private individuals, companies or associations. In the view of the Committee, a prisoner is typically "hired to" an undertaking where there is no contractual relationship between the two, while a contract exists between the undertaking and the penal institution under which the penal institution is paid the price of the labour it provides to the undertaking. Significantly, the amount paid to penal institutions under such contracts corresponds to the market value of the labour and bears no relation with the prisoner's own wage, paid by the penal institution and fixed in Germany by law at 5 per cent of the national average wage.

While Article 2(2)(c) of the Convention strictly prohibits that prisoners be hired to or placed at the disposal of private undertakings, the Committee has accepted, for the reasons set out in paragraphs 97 to 101 of its General Survey of 1979 on the abolition of forced labour, that schemes existing in certain countries under which prisoners may, particularly during the period preceding their release, voluntarily enter a normal employment relationship with private employers, do not fall within the scope of the Convention. As the Committee has repeatedly pointed out, only work performed in conditions of a free employment relationship can be held compatible with the explicit prohibition in Article 2(2)(c); this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, i.e. the basic obligation to perform prison labour, and other restrictions on the prisoner's freedom to take up normal employment, there must be further guarantees and safeguards covering the essential elements of a labour relation, such as a level of wages and social security corresponding to a free labour relationship, to remove the employment from the scope of Article 2(2)(c) which unconditionally prohibits that persons who are under an obligation to perform prison labour be hired to or placed at the disposal of private companies.

In comments made for many years on law and practice in Germany, the Committee has observed that contrary to the Convention, prisoners are hired to or placed at the disposal of private enterprises and that the provisions of the Act on the execution of sentences, adopted in 1976, that were to bring practice closer to the Convention, have not been put into effect. Thus, the requirement of the prisoner's formal consent to be employed in a workshop run by a private enterprise, laid down in section 41(3) of the 1976 Act which was to enter into force on 1 January 1982, was suspended by section 22 of the Second Act to improve the budget structure, of 22 December 1981; the 1976 Act also recognizes the prisoner's right to wages, but a provision for increases above the level initially fixed at 5 per cent of the national average wage of wage-earners and salaried employees was not given effect; finally, legislation which was to extend sickness and old-age insurance to prison labour was not adopted.

The Committee notes with interest from the Government's latest report that a draft Fourth Act to amend the Act on the execution of sentences, issued by the Ministry of Justice on 10 April 1996, provides for the entry into force of the suspended section 41(3) of the 1976 Act that requires the prisoner's formal consent to being employed in a workshop run by a private enterprise. It notes that the draft is to be submitted before the end of the year to Parliament, if the Federal Cabinet agrees.

The Committee further notes that another draft law, referred to by the Government in its previous report, that was to regulate the execution of sentences imposed on young offenders and which provided in section 42(2) for the formal consent of the young prisoners to being employed in workshops run by private enterprises, has not met with consensus on fundamental issues but is still being promoted by the Government.

The Committee hopes that the Government will soon be in a position to report that section 41(3) of the 1976 Act on the execution of sentences, which requires the formal consent of the person concerned to working in privately run workshops, will at last be brought into force; that effective and rapid measures will also be taken to implement the provision in section 198(3) of the 1976 Act for the inclusion of prisoners in the health and pension insurance schemes; and that their wages, which have remained fixed for the last 20 years at 5 per cent of the national average, although that percentage was to be progressively raised as from 31 December 1980, will be brought without further delay to the level warranted by their work for private undertakings; it being understood that all wages are subject to deductions and attachment within the limits prescribed by national legislation.