Forced Labour Convention, 1930 (No. 29) - El Salvador (RATIFICATION: 1995)

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. National policy. With reference to the implementation of the National Policy to Combat Trafficking in Persons, the Committee notes the Government’s list in its report of various training and awareness-raising activities in relation to trafficking in persons, implemented under the prevention component of the National Policy, and intended for the personnel of the national police, the Office of the Attorney-General and the Ministry of Labour and Social Welfare, migration officials, students in education establishments, and the personnel of the Ministry of Health and the Ministry of Justice and Public Security who are responsible for dealing with victims. In 2018, training was provided to over 6,000 people in the various institutions, and in 2020 over 1,000 public officials received remote training.

With reference to the difficulties experienced by the various public officials in combating trafficking, the Committee notes that the Government refers principally to the need to ensure coordinated action by all the institutions responsible, and to create conditions for victims to be able to participate in the criminal proceedings, be informed of their rights and be able to develop a new life plan.

The Committee requests the Government to continue providing updated information on the implementation and evaluation of all the components of the National Policy to Combat Trafficking in Persons, and on the preparation and implementation of a national plan of action, in accordance with section 22 of the Special Act to combat trafficking in persons of 2014. It also requests the Government to provide information on the activities of the National Council to Combat Trafficking in Persons with a view to ensuring coordination between all the institutions responsible for combating trafficking and strengthening their capacities.

2. Protection and assistance to victims. The Committee takes due note of the provisions of the Special Act on migration and foreign nationality, adopted in 2019, establishing that victims of trafficking may opt for temporary residence for their recuperation or collaboration with the law enforcement services (section 138) and that their repatriation shall be voluntary and with their informed consent, following an evaluation of the risk and the provision of the necessary assistance (section 142).

With reference to the action undertaken by Immediate Response Teams, the Government indicates that their involvement depends on the complexity of the case, the existence of a high risk to health and the risk incurred by the identified victim. Since 2018, Immediate Response Teams have taken action in six cases. The Committee notes the Government’s further indications that: (i) the El Salvador Institute for Women’s Development provided support and psychological assistance to 55 people between 2018 and 2020; (ii) a total of 21 local units have been established to provide assistance to victims of trafficking; and (iii) the budget of the Victims of Trafficking Care Fund has been established.

The Committee also notes that, according to the information provided by the Government, difficulties have been identified in relation to the protection and assistance of victims, including: (i) the inadequate coverage of protection for women victims of trafficking in shelters; (ii) the lack of specialized shelters for men, boys and members of the LGBTI population; (iii) the absence of identity documents for victims; and (iv) the unfounded fear of victims towards the authorities which leads them to dissimulate and refuse the protection measures offered, with them running away from protection shelters in some cases.

The Committee encourages the Government to continue its efforts to provide comprehensive protection and support for victims of trafficking in persons. In this regard, the Committee requests the Government to provide information on the measures adopted to strengthen the shelters for victims of trafficking in persons and to assist victims who do not have identity documents. Please also provide information on the operation of the Victims of Trafficking Care Fund, envisaged in section 51 of the Special Act to combat trafficking in persons of 2014.

3. Enforcement of penalties. The Committee takes due note of the detailed information provided on the criminal cases related to the crime of trafficking in persons initiated between 2017 and 2020 which have resulted in judicial decisions. According to the statistics of the Office of the Public Prosecutor, in 2019, 80 cases were initiated for this crime, of which three cases resulted in convictions and nine persons facing charges were convicted; in 2020, 40 cases were initiated, with four cases resulting in convictions and 12 persons facing charges were convicted; and between January and May 2021, 18 cases were initiated, with five cases resulting in convictions and 12 persons were convicted. The Government indicates that the National Council to Combat Trafficking in Persons reports that there are challenges in so far as those responsible for the prosecution of the crime require equipment, as well as strengthened capacities to carry out effective questioning and, more specifically, high technology police equipment and vehicles for investigation. The Committee requests the Government to continue providing updated information on the investigations carried out, the criminal prosecutions initiated and the convictions handed down under the Special Act to combat trafficking in persons. Please also provide information on the measures adopted to strengthen the capacities of those engaged in the investigation and prosecution of persons responsible for trafficking in persons for both labour and sexual exploitation (specialized units to combat trafficking in persons and related crimes of the Office of the Public Prosecutor and the National Civil Police).

Articles 1(1) and 2(1). Student social service. The Committee previously requested the Government to provide its comments in relation to the 2017 observations of the National Confederation of Salvadoran Workers (CNTS), in which it indicated that public and private educational establishments obliged students to carry out unpaid work for one or two years as a requirement to obtain their respective diplomas. In reply, the Government indicates that, in accordance with section 26 of the General Education Act, a Bachelor’s degree is granted to students who have completed and had the corresponding study plan approved, which includes the student social service. It also refers to Decision No. 15-0862 of May 2013, which contains the standards for the performance of student social service by middle and higher education students in the central offices and departments of the Ministry of Education. The Committee observes that, by virtue of introductory paragraph V of the above Decision, the objective of the student social service is to promote, among those with Bachelor’s degrees and professionals engaged in training, the development of values such as solidarity, service to others, mutual respect and team work, through the implementation of projects or activities with a social or educational purpose which contribute to the social development of the country. With a view to the performance of social service, education institutions have to submit a note to the Human Development Department of the Ministry with a request for students in the final years of their Bachelor degree studies or who are about to finalize their university studies to perform hours of social work in the units established by the Ministry of Education. The note must set out the hours during which the student performs vocational practice and the area of preference according to their studies (Part III, paragraph A, of the Decision). The Committee also notes that section 3 of the Regulations of the student social service for the middle level of 1994 provides that any person commencing their studies at the middle level shall automatically be included in the student social service, which may be performed during the three years of the Bachelor studies, and shall consist of the implementation of a project for the benefit of the community. Students are entitled to opt to carry out projects which correspond to their vocational interests, and they are not therefore imposed (section 5 of the Regulations).

The Committee recalls that a compulsory scheme of vocational training, by analogy with and considered as an extension of compulsory general education, does not constitute compulsory work or service within the meaning of the Convention. However, the various elements involved in the general context of a particular scheme of training have to be taken into account to determine whether such a scheme is unequivocally one of vocational training or on the contrary involves the exaction of work or services within the definition of forced labour (2012 General Survey on the fundamental Conventions, paragraph 269, and 2017 General Survey on the eradication of forced labour, paragraph 36).

On the basis of the above-mentioned legislative provisions, the Committee observes that the student social service was designed as a means of contributing to the training of students and the promotion of social values within the framework of the implementation of projects for the benefit of society, which take into account the type of studies undertaken. However, the Committee observes that the legislation does not specify the maximum number of hours that students have to perform in the student social service, nor the type of activities that they have to undertake in practice as part of that service. Lastly, the Committee notes that, according to information from the Ministry of Education, Science and Technology, in 2017, the Student Social Service Commission embarked upon the revision of the regulations of the student social service and prepared a draft text of new regulations. In accordance with section 13 of the draft regulations, the minimum duration of the student social service is 150 hours. The Committee requests the Government to specify the average and maximum number of hours that students have to perform as student social service to obtain their Bachelor’s degree, and indicate the frequency and provide examples of the type of activities assigned to them as part of such service. The Committee also requests the Government to indicate whether new regulations exist for the student social service and to provide a copy with its next report.

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The Committee notes the observations of the National Confederation of Salvadoran Workers (CNTS), received on 25 September 2017, particularly concerning the work having to be performed free of charge by certain pupils in the last years of their education before obtaining their diplomas. The Committee requests the Government to send its comments on this matter, if it so wishes.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee noted the setting up in 2011 of the National Anti-Trafficking Council, an inter-institutional body responsible for the formulation, monitoring, coordination and evaluation of action plans and programmes in this field. It also welcomed the adoption in 2012 of the national policy to combat trafficking in persons (national anti-trafficking policy). The Committee encouraged the Government to continue its efforts to prevent, eliminate and combat trafficking in persons, and in particular to provide appropriate assistance and protection for trafficking victims.

1. Legislative measures. The Government refers in its report to the adoption of the Special Anti-Trafficking Act (Decree No. 824 of 16 October 2014) and its implementing regulations (Decree No. 61 of 25 October 2016). The Committee notes that the Act puts forward an extended definition of the offence of trafficking in persons (delivering, collecting, transporting, transferring or receiving persons, or facilitating, promoting or enabling the foregoing, with a view to performing an activity, or enabling others to perform an activity, that qualifies as human exploitation) and establishes a penalty of imprisonment of ten to 14 years. According to section 5 of the Act, forms of human exploitation include bonded labour, sexual exploitation, forced labour, slavery and forced begging. The consent of the victim cannot be invoked to attenuate or nullify the criminal liability of the perpetrator. Moreover, the use of threats, force or any form of coercion or deceit constitutes an aggravating circumstance (sections 54–57). The Committee notes with interest the integrated approach adopted by the Act, which reaffirms that the national anti-trafficking policy is based on the following strategic components: detection, prevention and punishment of the crime of trafficking in persons, assistance and comprehensive protection for victims, restitution of their rights, and also coordination and cooperation. In this regard, it notes in particular that the Act and the Decree provide for: the setting up of specialist anti-trafficking units at the Public Prosecutor’s Office and within the National Civil Police; the setting up of care and reception centres for victims; the establishment of an assistance fund for trafficking victims; the possibility, depending on the victim’s migration status, of granting a one-year temporary residence permit; the obligation for the court issuing the trafficking conviction to determine the amount of compensation for the harm suffered by the victim; and the creation of the national information system on trafficking in persons, which collects and analyses statistical and academic data on the characteristics and scale of trafficking in El Salvador.

2. Institutional framework. The Committee observes that the national anti-trafficking policy is adopted for a period of five years. It constitutes the strategic policy framework for comprehensive action against trafficking in persons and is based on the various strategic components for action referred to above. Moreover, the legislation provides that the National Anti-Trafficking Council shall evaluate the implementation of the national policy every three years and publish an annual report on its work and on the implementation of multi-annual action plans to eliminate trafficking in persons. The Government provides detailed information in its report on the measures taken to raise awareness of the issue of trafficking and to strengthen the capacities of different stakeholders engaged in action against trafficking. The Committee notes in particular that the aim of these activities, conducted especially for labour inspectors or officials at the Public Prosecutor’s Office, is to enable early detection of possible cases of trafficking. Still in the context of strengthening capacities, the Government refers to the adoption of an action protocol for the detection and combating of illegal trafficking in persons and for the protection of victims. The aim of the protocol is to increase the effectiveness of the work of the Directorate-General for Migration and Foreigners by incorporating it in the framework of human rights protection.

While noting all the above information and welcoming the efforts made by the Government, the Committee requests the Government to continue taking steps to implement the different components of the national anti-trafficking policy and to provide information in this respect. It also requests the Government to indicate whether the National Anti-Trafficking Council has conducted regular evaluations of the implementation of this policy and the corresponding action plans and, if applicable, to provide copies of any reports published in this context. The Committee further requests the Government to indicate any difficulties encountered by the various stakeholders involved in action against trafficking, especially as regards identification of victims and their protection, and also the steps taken to overcome such difficulties. Lastly, the Committee requests the Government to send any statistical and academic data on the characteristics and scale of trafficking collected through the national information system on trafficking in persons.

3. Protection of victims. With regard to the protection of victims, the Government indicates that it is seeking the necessary funding and support to strengthen the specialist reception centres for girl trafficking victims and to create protection programmes for men and boys. The Government also refers to the setting up of “immediate response teams”, provided for in Decree No. 61, which take action in cases where imminent and prolonged assistance is called for, including medical and psychological treatment, food aid and the construction of a life project. The Committee requests the Government to indicate whether the assistance fund for trafficking victims has been set up and to specify the steps taken to strengthen capacities for the reception and assistance of trafficking victims, including through immediate response teams.

4. Application of penalties. The Committee notes the statistics provided by the Government for 2017 on the number of cases of trafficking in which the Ministry of Justice and Public Safety carried out joint actions with other authorities. Accordingly, 52 cases were reported, 47 were the subject of an investigation, charges were brought in seven cases, and three convictions were handed down. The Committee requests the Government to continue providing information on investigations, judicial proceedings, and the number and nature of convictions handed down on the basis of the Special Anti-Trafficking Act, indicating the forms of human exploitation cited by the courts. The Committee also requests the Government to indicate the resources made available to the specialist anti-trafficking units established at the Public Prosecutor’s Office and within the National Civil Police. Lastly, with regard to the obligation for the court handing down the anti-trafficking conviction to indicate the amount of compensation for the harm suffered by the victim, the Committee requests the Government to provide information in this regard.

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legislative measures. The Committee notes the Government’s indication that a draft Anti-Trafficking Law has been submitted to the Legislative Assembly in July 2013 and is currently under discussion. The Government indicates that the draft law criminalizes certain acts which are not covered by the penal legislation in force and provides for more severe sanctions for trafficking in persons. The draft law also stipulates the creation of mechanisms to strengthen inter-institutional cooperation, especially with regard to victims’ access to justice and effective remedies. The Committee encourages the Government to pursue its efforts with a view to ensuring the adoption of the draft Anti-Trafficking Law and requests it to provide, with its next report, information on the progress made in this regard.

2. Measures targeted at vulnerable groups. With regard to its previous comments concerning measures targeted at vulnerable workers, in particular domestic workers in rural and indigenous communities, the Committee notes the Government’s indication that article 63 of the Constitution has been amended pursuant to Decree No. 5 of 2012. Amended article 63 recognizes indigenous peoples and establishes the obligation of the State to adopt specific policies to safeguard their ethnic and cultural identities. While noting this information, the Committee notes the Government’s statement that no measures targeted specifically at domestic workers in rural or indigenous communities have been taken in the context of measures to address forced labour and trafficking. The Committee therefore encourages the Government to take the necessary measures, both in law and in practice, to strengthen the protection of workers in rural and indigenous communities, including domestic workers, against the imposition of practices which may amount to forced labour, providing the necessary assistance so as to enable them to assert their rights and denounce any abuses of which they may be victims. The Committee requests the Government to provide information on the steps taken or envisaged to this end.

3. Law enforcement and penalties. The Committee notes the statistical information provided by the Government on the number of investigations and prosecutions of cases of trafficking carried out, as well as the number of convictions and victims identified. According to this information, 142 cases of trafficking were investigated between 2012 and 2013, resulting in 11 convictions. The Committee requests the Government to continue to provide information on the investigations carried out and legal proceedings initiated, as well as on the number of convictions and the specific penalties applied to cases of trafficking, indicating, in particular, the number of cases relating to trafficking for labour exploitation or forced labour.

4. National Policy to Combat Trafficking. The Committee welcomes the adoption of a National Policy to Combat Trafficking in Persons in 2012. The Committee also notes the detailed information provided by the Government on the measures taken and results achieved in the areas of prevention, capacity building, awareness raising, regional and inter-institutional cooperation and victim protection and rehabilitation. The Committee notes, however, that while the Government refers to the establishment of shelters for child and female victims of trafficking, it provides little information with regard to measures aimed to protect, assist and rehabilitate male victims of trafficking and forced labour. The Committee encourages the Government to pursue its efforts to prevent, suppress and combat trafficking in persons, and to continue to provide information on the measures taken in this regard. It requests the Government to strengthen its efforts to ensure that appropriate protection and assistance is provided to all victims of trafficking, male and female, and to provide, with its next report, information on the steps taken to this end.

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Articles 2(1) and 25 of the Convention. Trafficking in persons and penalties. Referring to its previous comments, the Committee notes the information provided by the Government in its report according to which sentences of imprisonment have been imposed as a result of eight lawsuits between 2008 and 2010 regarding the crime of trafficking in persons (in the mentioned cases all victims were children). The Committee also notes the detailed information provided by the Government on the actions taken under the Strategic Plan of the National Committee against Trafficking in Persons, including information on training and prevention, and awareness-raising campaigns that have been developed. It notes, in particular, the victims’ protection policies, which include the creation of shelters, the establishment of a programme of group psychotherapeutical intervention for trafficking victims, as well as various actions taken by the Trafficking in Human Beings Unit of the Office of the Attorney General. Finally, the Committee notes the Government’s statement in which it recognizes the need for a more comprehensive law on trafficking in persons, as well as the creation of a coordination mechanism to prevent and suppress the crime of trafficking, providing also for victim’s protection.

The Committee notes the concluding observations of the United Nations Human Rights Committee on the implementation of the International Covenant on Civil and Political Rights by the Government of El Salvador (CCPR/C/SLV/CO/6, 18 November 2010). In its observations, the Human Rights Committee expresses concern about the fact that there have been investigations, prosecutions and convictions in only a very small proportion of cases of trafficking in persons in the country. As regards victims’ protection, the UN Committee further observes that the number of shelters available is limited and therefore insufficient to ensure the adequate and necessary protection to trafficking victims. Finally, the UN Committee expresses its concern about the vulnerable situation of women and girls performing domestic work, in particular in the rural and indigenous communities. It observes that domestic workers are often subject to particularly harsh working conditions, excessive working hours and unpaid or poorly paid work.

While acknowledging that the information provided by the Government demonstrates its efforts in combating trafficking in persons, the Committee hopes that the Government will continue to take measures in this regard, in particular by strengthening its law enforcement mechanisms in order to effectively investigate and prosecute cases of trafficking in persons, both for sexual and labour exploitation, and by ensuring that all trafficking victims receive access to necessary services and protection. Please provide information on the measures targeting vulnerable workers, in particular domestic workers in the rural and indigenous communities. The Committee would be grateful if the Government would continue to provide information on court decisions concerning trafficking cases, as well as information regarding any difficulties encountered by the competent authorities in identifying victims and in initiating legal proceedings against the perpetrators. Finally, the Committee requests the Government to provide updated information on the process of adoption of a comprehensive law on trafficking in persons.

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Articles 2(1) and 25 of the Convention. Trafficking in persons and penalties. In its previous observation, the Committee requested the Government to provide information about pending prosecutions as well as copies of any existing court rulings on the application of national legislation (sections 367 and 370 of the Penal Code) that penalizes trafficking in persons.

The Committee notes with interest the information provided by the Government in its report, according to which 11 sentences of from three to nine years’ imprisonment were imposed during the period from October 2006 to March 2008. The Government indicated that the text of the court judgements in these cases could not be supplied until the Supreme Court of Justice ruled on the appeals that were pending before it. The Committee hopes that the Government will provide a copy of the rulings mentioned as soon as possible, and that it will continue to inform about sanctions imposed on those responsible for the crime of trafficking in persons.

The Committee also notes with interest the adoption of the Strategic Plan 2008–12 of the National Committee against Trafficking in Persons, developed with assistance from the International Organization for Migration and the International Labour Organization, which has the objective of creating conditions and instruments that can contribute to the eradication of trafficking in persons. The Committee hopes that the Government will provide information about the actions undertaken in the different areas of the Strategic Plan, namely the legal framework, caring for victims, prevention, communication and sensitization.

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Imposition of overtime in the maquila industry. In its previous comments, the Committee requested the Government to provide information on the average number of additional hours worked by workers in the maquila sector and to indicate the measures taken or envisaged to protect workers in this sector against the imposition of compulsory labour. The Committee noted in previous comments the allegations made by trade union organizations, according to which production targets are set in maquila companies which require employees to work beyond the ordinary working day, without pay and under threat of dismissal.

The Government in its previous report received in 2004 provided information on the establishment of offices of the Ministry of Labour and Social Welfare in the export processing zones of Exporsalva, American Park and El Progreso with the role of serving as mediators after the means of redress offered by the enterprises has been exhausted. The Committee requested the Government to provide information on the activities of these offices, with an indication in particular of the number of instances in which workers have alleged the imposition of labour outside the ordinary working day.

The Committee notes the information provided by the Government in its report received in 2006, as to the activities of these offices which, inter alia, provide advisory services on labour matters and conciliation procedures for the resolution of conflicts between workers and enterprises located in export processing zones. Furthermore, training is provided on workers’ rights. The Committee also notes that the Ministry of Labour and Social Welfare is evaluating the results achieved through the presence of these offices in export processing zones. The Committee takes due note of this information and requests the Government to provide the results of this evaluation.

Article 2(2)(c) of the Convention. Consent of prisoners to work for private enterprises. The Committee previously requested the Government to indicate whether, pursuant to section 112(3) of the Prisons Act, the Ministry of Justice has concluded agreements with individuals or associations respecting the organization of agricultural, industrial or commercial undertakings, and to indicate the measures taken or envisaged to ensure that work by detainees for private enterprises is voluntary. The Committee notes the Government’s indication in its report that agreements have not been concluded under the above provision. The Committee hopes that the Government will inform it of any change in this situation.

The Committee notes the information provided by the Government on the sentence of compulsory work to be performed for private entities providing public services.

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons and penalties. In its previous observation, the Committee requested the Government to provide information on the measures taken to prevent and combat trafficking in persons, including the court judgements handed down pursuant to sections 367 and 370 of the Penal Code, under the terms of which trafficking in persons for any purpose and the organization or membership of international organizations involved in the trafficking of slaves or the sale of persons are punishable by a prison sentence of between four and eight years, respectively. The Committee noted the Government’s indication that, in connection with sections 367 and 370 of the Penal Code, a number of court cases were under way on which no rulings had yet been handed down and that it would bring them to the attention of the Committee when they were issued. The Committee noted with concern that no penalty had been imposed under the provisions of the Penal Code to punish trafficking in persons and recalled the requirements set out in the Convention that the exaction of forced labour shall be punished as a penal offence by penalties that are really adequate and are strictly enforced (Article 25).

The Committee notes the Government’s indication in its last report received in August 2006 that awareness-raising campaigns are being carried out for the population at large with the participation, inter alia, of the Office of the Public Prosecutor of the Republic and its crime prevention unit. It adds that a National Committee on Trafficking in Persons has been established in which various institutions participate, such as the General Directorate of Migration and Foreign Nationals, the national police, the Office of the Public Prosecutor, the Ministry of Labour and non-governmental organizations. The purpose of the National Committee is to coordinate action to ensure that effective measures are taken to combat and prevent trafficking in persons. Training programmes have also been carried out for persons working in this area on proving the existence of the crime and the accusation of the perpetrator in a manner that guarantees the presumption of innocence.

The Committee once again observes that the Government’s report does not contain any information on the application of sections 367 and 370 of the Penal Code. The Government does not refer to court cases that are under way, nor to any penalty imposed on the persons responsible. The Committee hopes that compliance with procedural guarantees of the presumption of innocence, which clearly have to be safeguarded in every country abiding the rule of law and to which the Government refers in its last report, will not affect or impede compliance with the requirement of the Convention, namely the imposition of penal sanctions following due process on those found guilty of the crime of trafficking in persons.

The Committee requests the Government to provide information on the court cases that are under way and, where appropriate, copies of the rulings handed down under the national legislation that has been adopted (sections 367 and 370 of the Penal Code) with a view to combating this serious crime. The Committee hopes that the Government will continue to provide information on any other measure adopted to combat trafficking in persons.

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Article 2, paragraph 2(c), of the Convention. Sentence of compulsory work to be performed for private entities providing public services. The Committee takes note of section 55 of the Penal Code and section 56 of the Prisons Act, which deal with compulsory work performed in the public interest. According to section 55 of the Penal Code, persons sentenced to perform work in the public interest are required to accomplish a working week of from eight to 16 hours, at the places and times determined by the judge supervising the penitentiary, in public or private social establishments. Under section 56 of the Prisons Act, inmates are assigned to a public or private social entity by the judge responsible for overseeing the penitentiary and the execution of the penalty.

The Committee observes that a person sentenced to carry out work in the public interest may be required to perform work for private legal entities, and reminds the Government that Article 2, paragraph 2(c), provides expressly that a person convicted in a court of law may not be hired to or placed at the disposal of private individuals, companies or associations. The exception allowed by this provision of the Convention does not cover work performed for private social entities, even if they are non-profit-making. However, work may be performed for such entities if the inmate so requests or freely consents.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to ensure that persons sentenced to perform work in the public interest are not hired to or placed at the disposal of private individuals, companies or associations without their consent. It also asks the Government to provide information on the arrangements for supervision by the public authorities (judges responsible for penitentiary oversight, Probation and Release Department) of the execution of the penalty of work in the public interest. The Committee requests the Government to provide a list of the private social entities referred to in section 56 of the Prisons Act.

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1. Articles 2, paragraph 1, and 25 of the Convention. Trafficking in persons, and penalties. In its previous observation, the Committee referred to comments from the Inter-Union Commission of El Salvador and the International Confederation of Free Trade Unions (ICFTU). Both these organizations referred to trafficking in women and young persons for the purposes of forced prostitution as a considerable problem. As regards the trafficking of young persons, the Committee considers that this is an issue that can be examined in connection with the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), also ratified by El Salvador. It accordingly refers the Government to its comments under that Convention.

The Committee notes the Concluding Observations of the Committee on the Elimination of All Forms of Discrimination Against Women (A/58/38, paragraph 271), in which the abovementioned Committee noted with concern the problem of trafficking and sale of women and girls and the lack of studies, analyses and statistics.

The Committee observed that trafficking in persons is a serious violation of the Convention and urged the Government to take the necessary measures to prevent and combat it. It asked the Government to provide copies of court decisions handed down pursuant to sections 367 and 370 of the Penal Code, under which trafficking in persons for any purpose, and organizing or belonging to international organizations involved in the trafficking of slaves or the sale of persons, are punishable by a prison term of from four to eight years and from five to 15 years, respectively. It also requested the Government to provide copies of the Santa Ana and San Salvador Municipal Codes on the trafficking of women.

In its report, the Government indicates, in connection with sections 367 and 370 of the Penal Code, that a number of court cases are under way and that the Committee will be informed of the judgements as soon as they have been given. The Committee notes with concern that until now no penalty has been imposed under the provisions of the Penal Code which punish the trafficking, and it reminds the Government in this respect that the Convention requires the exaction of forced labour to be punished as a penal offence by penalties that are really adequate and strictly enforced (Article 25).

The Committee hopes that in its next report the Government will provide information on the measures taken to prevent and combat trafficking in persons, including the court judgements handed down pursuant to sections 367 and 370 of the Penal Code, and copies of the Santa Ana and San Salvador Municipal Codes on the trafficking of women.

2. Overtime in the maquila industry. The Committee noted in its previous observation the comments made by the Inter-Union Commission of El Salvador on the situation of the many workers in maquilas who are required, under threat of dismissal, to work overtime in excess of the limits laid down in the national legislation and without pay. The Committee noted that, according to the above organization, maquila companies set production targets which require employees to work beyond the ordinary working day, without pay and under threat of dismissal.

The Committee requested the Government to provide information on the average number of additional hours worked by workers in the maquila sector and to indicate the measures taken or envisaged to protect workers in this sector against the imposition of compulsory labour.

In its report, the Government states that offices of the Ministry of Labour and Social Welfare have been established in the export processing zones of Exporsalva, American Park and El Progreso and that their role is to serve as mediators after the means of redress afforded by the enterprises have been exhausted. The Committee requests the Government to provide information on the activities of the abovementioned offices, indicating in particular the number of instances in which workers have alleged imposition of labour outside the ordinary working day.

3. Article 2, paragraph 2(c). Inmates’ consent for work in private enterprises. In its previous observation, the Committee referred to section 107 of the Prisons Act under which "convicted persons shall be obliged to work", and observed that this provision did not allow the inference that work by detainees for private entities is of a voluntary nature.

The Government responds in its report that the abovementioned provision refers to maintenance activities (cleaning, etc.) in prison premises.

The Committee observes, however, that section 112 of the Prisons Act establishes that in every prison an office shall be responsible for assigning work to the inmates (subsection 1) and that the Ministry of Justice may conclude agreements with national or foreign natural or legal persons to organize agricultural, industrial or commercial undertakings (subsection 3).

The Committee reminds the Government that, when a private undertaking is involved in work performed by inmates, the latter must be able to give their consent to the employment relationship and that, moreover, the conditions of work must resemble those of a freely contracted work relationship. The Committee notes with interest in this connection that section 110 of the Prisons Act provides that private entities which engage detainees shall pay no less than the minimum wage required for such work. The Committee requests the Government to indicate whether, pursuant to section 112(3) of the Prisons Act, the Ministry of Justice has concluded agreements with natural or legal persons to organize agricultural, industrial or industrial commercial undertakings. Please also indicate the measures taken or envisaged to ensure that work by detainees for private enterprises is voluntary in nature.

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The Committee notes the comments made by the Inter-Union Commission of El Salvador, dated 12 September 2002. These comments were forwarded to the Government, on 19 September, for any comments that might be considered appropriate, and the Government’s reply was received on 20 December 2002.

The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU), dated 31 January, received on 3 February 2003 and forwarded to the Government on 17 February. The Government’s reply was received on 23 April 2003.

1. Trafficking in persons. In its communication, the Inter-Union Commission of El Salvador referred to the trafficking in persons and the "worrying frequency" with which foreign nationals from neighbouring countries are subjected to deception and are forced by means of threats to engage in sex work under clearly inhumane conditions.

The International Confederation of Free Trade Unions (ICFTU) raised similar issues, describing the trafficking in women and young persons for the purposes of forced prostitution, occurring in El Salvador, as constituting a "considerable problem".

The Committee notes the study carried out by the International Programme on the Elimination of Child Labour (IPEC) entitled "El Salvador commercial sexual exploitation of girls, boys and young persons: A rapid evaluation", published in March 2002. This report indicates that "based on previous investigations and information received during the current investigation it is possible to state that there is a migratory flow of young persons for the purposes of commercial sexual exploitation which is not necessarily concentrated in the capital, but also on the borders and in border towns and in other Central American countries" (page 41).

The Committee also notes the Report of the Special Rapporteur on the sale of children, child prostitution and child pornography (UN document E/CN.4/2000/73/Add.2, 27 January 2000, paragraphs 51, 74 and 107) which refers repeatedly to the presence of young persons from El Salvador in Guatemala. State officials informed the Special Rapporteur that there are children from El Salvador, Honduras, Mexico and Nicaragua who are in Guatemala for prostitution, in much the same way that Guatemalan children are in those countries for the same reason (paragraph 47).

The Committee also notes the Concluding Observations of the United Nations Committee on the Elimination of Discrimination Against Women (UN document A/58/38/, 28th Session, paragraph 271) in which the above Committee noted with concern the problem of exploitation of prostitutes and trafficking and sale of women and girls and the lack of studies, analyses and gender-disaggregated statistics on its incidence.

The Committee notes that sections 367 and 370 of the new Penal Code provide that the trafficking in persons for any purpose and organizing or being a member of "organizations of an international nature devoted to trafficking in slaves, the sale of persons ..." shall be punishable by imprisonment of from four to eight years and from five to 15 years respectively. The Committee hopes that the Government will provide copies of the rulings, sentences and judicial measures applied under these provisions.

The Committee notes that in its reply to the comments made by the ICFTU the Government refers to the draft Code of Children and Young Persons and mentions the "formulation of reforms to the national legislation to combat commercial sexual exploitation", with special emphasis on the "strengthening of penalties for pimps" and the designation as a criminal offence of the acts of exploiters of young girls, better known as "clients".

The Committee hopes that the Government will provide a copy of the Code of Children and Young Persons, as soon as it is adopted, as well as information on the measures to combat the commercial sexual exploitation of young persons and their implementation in practice.

The Committee notes that the sixth report submitted by the Government to the Committee on the Elimination of Discrimination Against Women (CEDAW/C/SLV/6, of 25 November 2002, page 12) contains information on the adoption of two Municipal Codes containing provisions respecting the trafficking in women and the exploitation of the prostitution of women, namely the San Salvador Municipal Code, which entered into force on 1 March 2000, and the Santa Ana Municipal Code. The Committee requests the Government to provide copies of the above Codes.

The Committee recalls that the trafficking in persons, and particularly the trafficking in young persons, constitutes a grave violation of the Convention and urges the Government to take the necessary measures to prevent and combat the phenomenon. Furthermore, noting that the Government has not replied to the Committee’s general observation of 2000, it requests the Government to provide the information requested therein.

2. Overtime performed in the maquila industry. The Inter-Union Commission of El Salvador also refers in its communication to the "forced labour conditions frequently encountered (...) in foreign-owned maquila enterprises". In support of its allegations, it refers, inter alia, to working days beyond the hours set forth by the law, failure to pay overtime, determination of quotas or targets beyond any reasonable work performance to be completed outside working hours.

The Committee notes the information contained in the monitoring report on the maquila and special fiscal areas published by the Labour Relations Monitoring and Analysis Unit of the Ministry of Labour and Social Insurance in July 2000. In this respect, the Committee notes the reservation expressed by the Government in its report with regard to the above report with the indication that "the above publication was never made official by this Secretariat of Labour and Social Insurance, and as a consequence the views expressed therein do not in any way reflect the official position of this Ministry".

According to the above report, during the visits made, it was possible to confirm that overtime is worked on a daily basis in the majority of maquila companies, in order to complete the production goals established by the company. Despite finding that in these enterprises the remuneration is in many cases in accordance with the law, the report indicates that most of the overtime hours are worked at night time without being paid the additional rate of 25 per cent for each hour worked as provided by the law. According to the report, "it is also important to point out that in the majority of companies it is an obligation for the personnel to work overtime under the threat of firing or some other kind of reprisal (...)". It is further indicated that "on some occasions, because overtime is extended into the late hours of the night, the workers find themselves obligated to sleep in the factory facilities, which do not have conditions necessary for personal care" (pages 12 and 13).

The Committee hopes that the Government will provide information on the average number of overtime hours performed by workers in the maquila sector.

The Committee recalls that the imposition of overtime hours does not affect the application of the Convention in so far as such a requirement lies within the limits established by the national legislation or accepted by collective agreements. In this case, however, the allegations are that overtime hours imposed above such limits and without payment would constitute compulsory labour where performed under menace of dismissal.

The Committee hopes that the Government will indicate the measures taken or envisaged to protect workers in the maquila sector against the imposition of compulsory labour.

3. Article 2, paragraph 2(c), of the Convention. In its previous comments, the Committee requested information on the measures which have been taken or are envisaged to ensure that convicted persons are able to give their consent to the employment relationship with private entities.

The Committee notes that in its report the Government refers to section 105 of the Prisons Act, which establishes the identity of prison work as free work, in every possible respect, from which it may be deduced that it is of a voluntary nature.

The Committee notes with interest that section 110 of the Prisons Act provides that private entities which engage detainees shall pay no less than the minimum wage required for such work and that all the rights set forth in the labour legislation shall be applicable to prisons provided that they are not contrary to the Prisons Act (section 105).

With regard to the consent which must be given by the detainee for the employment relationship with private entities, the Committee nevertheless notes that under the terms of section 107 of the Prisons Act, "convicted persons shall be obliged to work" and that this provision does not allow the inference that work by detainees for private entities is of a voluntary nature.

The Committee hopes that the Government will indicate the measures that have been taken or are envisaged to establish that detainees must freely give their consent to an employment relationship with private entities.

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The Committee notes the Government’s report and the adoption of the Penal Code, Legislative Decree No. 1030 of 26 April 1997 and the Prisons Act, Decree No. 1027 of 24 April 1997.

1.  The Committee notes with interest that sections 367 and 370 of the Penal Code envisage prison sentences of up to 15 years for persons who engage individually or as members of an organization in the trafficking of persons for any purpose.

2.  The Committee notes that section 110 of the Prisons Act, under which "detainees who perform work for private entities shall at all times be under the supervision of the personnel of the centre, and private entities which engage them shall pay no less than the minimum wage required for such work". The Committee also notes sections 107(2) and 108 of the same Act, which provide that convicted persons shall be obliged to work in accordance with their physical aptitudes except when they are incapacitated by illness, pregnancy, for mental reasons or in cases of force majeure, or are over 60 years of age or physically disabled.

The Government states in its report that no sanctions are imposed on detainees who do not perform work, and that it cannot therefore, in its opinion, be considered that prison labour is compulsory.

In this respect, the Committee wishes to recall that work performed by detainees for private enterprises may be held to be compatible with the Convention where the work is voluntary and performed in an employment relationship which can be approximated to a free employment relationship, that is where the persons concerned have given their voluntary consent, provided that there are appropriate guarantees, including payment of normal wages and social security, etc. The Committee notes that, with reference to the payment of wages, the Prisons Act establishes that private entities which engage convicted persons shall pay no less than the minimum wage, but it notes that there is no provision in the above Act with respect to the voluntary consent that prisoners must be able to give in order to work for private entities.

The Committee requests the Government to provide information on the measures which have been taken or are envisaged to ensure that convicted persons are able to give their consent to the employment relationship with private entities.

3.  The Committee notes the information provided by the Government concerning the conditions under which career members of the armed forces may leave their employment.

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The Committee notes with interest the information contained in the Government's first report and the report received in May 1998.

The Committee requests the Government to indicate in its next report the conditions under which career military personnel or persons who have studied in the armed forces may resign from their employment.

The Committee noted that a draft text respecting the prison system has been presented to the Legislative Assembly and requests the Government to provide information in this respect and a copy of the legislative text as soon as it has been adopted.

The Committee would also be grateful if the Government would provide a copy of the following texts: the Act respecting the organization and activities of the employment sector and social security, D.E. No. 682 of 11 April 1996, Official Gazette No. 81, t. 331, of 3 May 1996; the Act respecting military service and the armed forces, Official Gazette No. 144, t. 316, of 10 August 1992 which were referred to in the Government's report.