Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 29) sur le travail forcé, 1930 - Kirghizistan (Ratification: 1992)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Kirghizistan (Ratification: 2020)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legal and institutional framework, and law enforcement. In its earlier comments, the Committee noted the adoption of Act No. 55 of 17 March 2005 on Preventing and Combating Trafficking in Human Beings, as well as section 124 of the Penal Code on trafficking in persons. It also noted the development of a National Action Plan against Human Trafficking for 2012–15.

The Committee notes the Government’s indication in its report that Law No. 218 of 2011, amending Act No. 55 on Preventing and Combating Trafficking in Human Beings (Anti-Trafficking Act) has introduced a new definition of “trafficking in persons” which provides for criminal liability for the exploitation of minors, regardless of whether such acts are committed using threats, physical violence or deception, or whether any form of coercion is used. The Committee also notes that additions have been made to the definition section of the Anti-Trafficking Act, including “Criteria for identifying victims of trafficking” and “National referral scheme for victims of trafficking”. The Bill was approved by Government Decision No. 240 of 27 April 2017 and has passed its first reading in Parliament. Moreover, a new National Action Plan to combat trafficking in persons has been drawn up for 2017–20 and submitted to the Government for approval.

The Government further indicates that more than 1.1 million Kyrgyz nationals are currently residing in foreign countries as labour migrants and are potential victims of trafficking. In this regard, it has 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. A department for combating trafficking in persons and crimes against public morality has also been established under the criminal investigation directorate of the Ministry of Internal Affairs (Decree No. 959 of 28 November 2014).

Furthermore, the Government indicates that a number of resource books have been prepared for law enforcement agencies and distributed to the territorial subdivisions, including: “Practical guidance for identifying victims of human trafficking in the Kyrgyz Republic”; and “Resource book for use by law enforcement officials in combating trafficking in persons”. The Committee requests the Government to provide information on the measures taken within the framework of the 2017–20 National Action Plan to combat trafficking in persons and the results achieved. It also requests the Government to provide information on the application in practice of Act No. 55 on Preventing and Combating Trafficking in Human Beings, including the number of prosecutions, convictions and penalties applied in relation to trafficking in persons. Please indicate the measures taken to strengthen the capacity of law enforcement authorities, including the labour inspectorate, so as to ensure that victims are identified and that effective sanctions are applied against perpetrators.

2. Protection of victims. The Committee notes the Government’s indication that the Ministry of Internal Affairs has 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 identification process has also been designed to protect victims’ rights and interests and to ensure that they receive social assistance and protection as provided for in the Anti-Trafficking Act. The Government also states that the criminal investigation directorate of the Ministry of Internal Affairs has started to develop guidance on a national referral scheme for victims of trafficking. Moreover, pre-migration training is provided on a constant basis to migrant workers travelling to the Russian Federation, the Republic of Korea, Turkey, the United Arab Emirates and Kazakhstan. Informational and educational work has been conducted to assist victims of trafficking, in cooperation with international and non-governmental organizations, including the setup of a free telephone hotline. The hotline, provides comprehensive information on migration issues, including the smuggling and trafficking of persons. During the reporting period, a total of 1,861 calls have been received. The Committee also notes that according to the Government, the Ministry of Internal Affairs, in cooperation with the International Organization for Migration (IOM) in Bishkek and a partner network of non-governmental organizations, have provided assistance to victims of trafficking, including medical, legal, psychological and reintegration support. The Committee requests the Government to continue to provide information on the measures taken to ensure better identification of victims of trafficking. It also requests the Government to provide information on the number of victims who have benefited from the abovementioned assistance.

Article 2(2)(a) of the Convention. Compulsory military service. Alternative service. The Committee previously noted that under article 23(3) of the 2010 Constitution, forced labour is prohibited, but that enlistment to military or alternative (civilian) services shall not be considered forced labour. The Committee observed that this exception is wider than those contained in the Convention, as Article 2(2)(a) of the Convention only excludes, from the prohibition of forced labour, service exacted by virtue of compulsory military service laws if such service is of a purely military character.

The Committee notes the Government’s indication that according to the “Act on Universal Compulsory National Service for Kyrgyz Citizens: Military and Alternative Service” (9 February 2009), alternative service may be performed by citizens of Kyrgyzstan instead of military service on grounds of their religious beliefs, family status, criminal record or state of health. Moreover, the Regulations governing the procedure for undertaking alternative service, approved by Government Decision No. 306 of 18 May 2009, contain no provisions relating to forced labour. The Committee underlines 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 remains outside the scope of the Convention. In this regard, the Committee recalls 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 (see the 2012 General Survey of on the fundamental Conventions, paragraph 275). In this regard, the Committee requests the Government to provide information on the conditions under which alternative service is granted and performed, including the duration of the service, the tasks to be performed, as well as whether the alternative service is limited to conscientious objectors. It also requests the Government to supply a copy of the 2009 Act on Universal Compulsory National Service for Kyrgyz Citizens: Military and Alternative Service, as well as the Regulations on alternative service.

Article 2(2)(c). Prison labour. In its previous comments, the Committee noted the Government’s statement that the use of the labour of convicted persons is governed by the Code of Criminal Procedure, and the Internal Rules for Prisons, approved by Order No. 604 of 23 September 2011. The Committee noted that according to section 28 of the Internal Rules for Prisons prisoners can only perform work inside the prison. Under section 26, prisoners may also apply to perform specific types of work relating to the maintenance and operation of the prison, and that, if selected for such work, they must provide their consent in writing. The Committee further observed that section 27 relates to work performed in penal settlements, whereby work may be performed for other institutions, organizations and ministries within the local region. According to section 27(3) specific regulations concerning the execution of work by prisoners in penal settlements shall be issued by government decree.

The Committee notes the Government’s indication that, according to section 27 of the Internal Rules for Prisons, prisoners may be assigned to work outside the settlement grounds, but within its general vicinity. The types of institutions within the Kyrgyz penitentiary system at which prisoners may work are: corrective settlements; prison settlements; prisons and remand centres. Remand centres can serve as correctional institutions for prisoners assigned to janitorial duties. The Government also indicates 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 recalls that Article 2(2)(c) of the Convention strictly prohibits that prisoners are 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. In such a situation, work of prisoners for private parties would not be in violation of the Convention, since no compulsion is involved. Moreover, the Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is that the work is performed under conditions which approximate a free labour relationship, including wages, social security and occupational safety and health. The Committee requests the Government to indicate whether prisoners who work in prison settlements for private undertakings do so with their formal, free and informed consent. In this regard, it requests the Government to provide a copy of the Instructions on the procedure and conditions for serving sentences in prison settlements within the Kyrgyz penitentiary system.

Article 2(2)(d). Legislation concerning cases of emergency. In its previous comments, the Committee noted that article 23(3) of the Constitution (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 requested the Government to indicate the guarantees provided in the legislation to ensure that power to call up labour in cases of emergency is limited to what is strictly required by the exigencies of the situation.

The Committee notes an absence of information on this point in the Government’s report. The Committee once again requests the Government to indicate whether any special legislation concerning cases of emergency has been adopted or is to be adopted under these provisions. It also requests the Government to provide information on whether any guarantees are provided to ensure that the power to call up labour in cases of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in cases of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.