Forced Labour Convention, 1930 (No. 29) - Mongolia (RATIFICATION: 2005)

CMNT_TITLE

Previous comment

Articles 1(1) and 2(1) of the Convention. Freedom of career members of the armed forces to leave their service. In response to its previous comments concerning the provisions that are applicable to members of the armed forces concerning their right to leave the service, the Committee notes the Government’s reference to the Law on Civil Service, 2017, which guarantees the civil servants the right to leave or resign their service upon his/her own request (sections 38.1.8 and 46.2.4). It notes that according to sections 13.1.4 and 13.1.6, officers and sergeants of armed forces, border protection and internal troops are regarded as civil servants. Moreover, the Law on Military Service, 2016, under section 22.1.6 allows the resignation of military servants from the service at their own request.

Article 2(2)(a). Work or services exacted under compulsory military service laws. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that both in law and practice work or service requested from conscripts under compulsory military service is strictly limited to work of a purely military nature. It referred in this regard to section 4 of the Law on Civil Military Services Duties and Legal Status of the Military Servicemen, 2016, and resolution No. 107 of 22 March 2013 establishing the “Mongolian conscripts for reconstruction” project”. The Committee notes the Government’s information that according to the Law on State and Official Secrets, the number of conscripts participating in reconstruction work is part of state secrets and therefore it is not allowed to share the data. The Government also indicates that the National Statistics Office is conducting a forced labour survey as part of its regular Labour Force Survey, that will measure the characteristics and extent of forced labour. The questionnaire attached to this survey includes questions to reveal if persons had been subjected to compulsory labour during their compulsory military service.

The Committee recalls that under Article 2(2)(a), compulsory military service is excluded from the scope of the Convention, only on the condition that work performed by conscripts under this obligation is of “a purely military character” and that this condition does not apply to career military personnel who is not covered by the exception to forced labour under Article 2(2)(a). The Committee requests the Government to take the necessary measures to ensure that both in law and practice conscripts performing their compulsory military service are not requested to perform work that is not of a “purely military character”. It also requests the Government to provide specific information on the number of persons performing compulsory military services, the types of work that may be assigned to them and the results of the forced labour survey.

Article 2(2)(c). 1. Work of prisoners for the benefit of private individuals. The Committee previously noted that both under the legislation and in practice convicted persons may undertake work for private entities without formally giving their free and informed consent to such work (Law on Enforcement of Court Decisions, 2017 (sections 145 and 217)). The Committee notes that the Government, while referring to general prohibition of forced labour under section 8.3.4 of the revised Labour Law of 2021 also refers to sections 214.6 and 217.1 of the Law on Enforcement of Court Decisions which allows prisoners in open prisons to be hired by legal entities not owned by the prison or work outside the prison; and to work under proper supervision while requiring the prison to establish an agreement with a legal entity for employing its prisoners. The Government indicates that there is no consolidated data on the employment of prisoners for private enterprises but that the National Human Rights Commission is conducting a qualitative study on prison labour, with the support of the ILO, the results of which would be available shortly.

The Committee recalls that the Convention addresses not only situations where prisoners are “employed” by the private company, but also situations where prisoners are hired to or placed at the disposal of private undertakings but remain under the authority and control of the prison administration. It once again recalls that the work of prisoners for private companies is only compatible with the Convention where it does not involve compulsory labour. To this end, the formal, freely given and informed consent of the persons concerned is required, in addition to further guarantees and safeguards covering the essential elements of a labour relationship, approximating those of a free labour relationship. The Committee therefore requests the Government to take the necessary measures both in law and practice to ensure that formal, freely given and informed consent of convicts is required, as well as conditions approximating those of a free labour relationship for all work of prisoners for private enterprises, both inside and outside prison premises. The Committee requests the Government to provide information in this regard as well as on thequalitative study on prison labour undertaken by the National Human Rights Commission.

2. Compulsory labour imposed as an alternative to imprisonment (sentence of community work). Following its previous comments, the Committee notes that the Government provides a list of state administrative institutions, public service institutions and state-owned enterprises, approved by the General Executive Agency of Court Decisions, where offenders sentenced to socially useful labour are permitted to work pursuant to section 163.1 of the Law on Enforcement of Court Decisions. The Committee also takes due note of the Government’s information that as of 20 November 2022, there were 272 convicted persons performing community work, out of which 73.7 per cent were cleaning public areas and streets, 45 per cent were planting trees and 32 per cent were doing other work, such as maintenance, assistant administrative clerk, carpentry and cooking. The majority of work is carried out in institutions such as police, public utilities and landscaping department, passenger transportation department, state-owned enterprises in provinces, sub provinces and districts, as well as local government owned self-sustaining enterprises.

CMNT_TITLE

Previous comment

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. (i) Implementation of the National Action Plan. In response to its previous comments concerning the implementation of the National Programme on Combating Human Trafficking 2017–21, the Committee notes the Government’s information in its report on the amount of the resources allocated to the National Programme. As regards the final evaluation of the National Programme, the primary objective of organizing work to prevent and combat trafficking in persons through the study of this phenomenon and its root causes was assessed as being 93.9 per cent complete. Between 2019 and 2021, nine national studies were conducted, while three nationwide public awareness-raising campaigns were organized. The Government and civil society organizations have independently and jointly carried out several activities including, capacity-building and training of personnel, sharing experiences with foreign counterparts, improving the legal framework, organizing nationwide awareness-raising campaigns and producing/distributing advocacy materials with the support of programmes and projects funded by international organizations. The Committee requests the Government to pursue its efforts to combat trafficking in persons, including through developing and implementing a new national programme. It requests the Government to provide information on any assessment of the national action to combat trafficking carried out by the National Sub-Council on Combating Trafficking in Persons and any recommendations made in this context, as well as on the measures taken or envisaged as a consequence.

(ii). Identification and protection. The Committee notes the Government’s information that resources were allocated to non-governmental organizations (NGOs) for the provision of primary services including shelter, psychosocial rehabilitation, medical care and legal services and repatriation services to victims of trafficking. In 2021, two NGO-run shelters to accommodate victims of trafficking were furnished for the needs of child victims. Moreover, under the project Preventing Violence Against Women and Supporting Victims implemented by the Ministry of Labour and Social Protection, guidelines to identify victims of human trafficking were developed and adopted by Order No. A/57 of 5 April 2022. The Mongolian Gender Equality Center, an NGO, provided shelter, healthcare services, food, clothing, legal and psychosocial counselling to 46 victims of trafficking in 2020, 41 victims in 2021 and 21 victims in the first half of 2022. In addition, skills development training and assistance to start businesses were organized for victims of trafficking. The Committee requests the Government to continue to take the necessary measures to provide protection and assistance to victims of trafficking in persons and to indicate the number of victims who have been identified and those who were granted assistance for their rehabilitation and/or repatriation, as well as the nature of such assistance.

(iii). Law enforcement and penalties. The Committee notes the Government’s information that within the framework of the National Programme, specialized training manuals for police officers, prosecutors, border service officers, immigration officers, judges, lawyers, social workers and health practitioners were developed. The Government indicates that between 2019 and 2021, 31 cases of trafficking in persons for sexual exploitation were registered under section 13.1 of the Criminal Code, involving 49 perpetrators and 130 victims of whom 40 per cent were children. In the four cases resolved in 2021, ten perpetrators were convicted and sentenced to imprisonment ranging from three to 15 years. During the first quarter of 2022, the police investigated four cases involving six alleged perpetrators and nine victims. The Committee requests the Government to continue to take the necessary measures to ensure that all cases of trafficking are properly identified and subject to thorough investigations with a view to ensuring that perpetrators are prosecuted and that dissuasive penalties are imposed. It further requests the Government to provide statistical data in this regard as well as information on the measures taken to continue to strengthen the capacities of law enforcement officials, including labour inspectors, prosecutors and judges, particularly by providing appropriate training.

2. Vulnerable situation of migrant workers with regard to the exaction of forced labour. In its previous comments, the Committee noted that a significant number of migrant workers from China and the Democratic People’s Republic of Korea worked in Mongolia in conditions tantamount to forced labour and requested the Government to take the necessary measures to address this situation.

The Committee notes the Government’s information that the revised Law on Labour Migration, adopted by Parliament in December 2021, contains new provisions to protect the rights of foreign/migrant workers. According to this law, the State administrative body shall issue an employment permit to the foreign worker based on his/her employment contract with the employer. An employer who has failed to pay the wages of, or caused any damages to the previously employed worker, shall be denied the right to invite foreign workers for two years (section 25.1.2). According to section 26, an employer’s permit to employ foreign workers shall be cancelled, if: (i) the terms and conditions agreed in an employment contract including wages, working environment, working hours and rest period have not been met; (ii) the employer has violated the labour or occupational safety and health legislation; (iii) the employer fails to provide preparatory training, health check-up and medical examination of workers; (iv) the employer has withheld the foreign worker’s documents or wages; or (v) the employer has employed a foreign worker for purposes or at locations other than those specified in the employment permit. Moreover, section 34.2 provides for the establishment of a State administrative body to advise employers, conduct regular inspections and supervise the employment and working conditions of foreign workers and compliance with the law.

The Committee notes the Government’s information that in 2021, the General Authority for Labour and Welfare Services launched an electronic platform to enable an integrated registration system of entities that receive foreign workers, and to improve oversight of compliance with the relevant legislation. The Government further indicates that according to the National Statistics Office, 6,200 foreign citizens from 88 countries were working on the basis of an employment contract in Mongolia as of the second quarter of 2022. It stresses that no cases of forced labour of foreign workers were prosecuted and that, in September 2020, three citizens of Myanmar lodged a complaint with the Mongolian authorities of labour exploitation, which was later dismissed. The Committee welcomes the adoption of the new provisions of the Law on Labour Migration and encourages the Government to continue to take measures to protect migrant workers from abusive practices and prevent them from being trapped in situations that could amount to forced labour. It requests the Government to provide information on the measures taken for the effective implementation of the Law on Labour Migration, indicating the measures taken to inform migrant workers of their rights, the number of inspection visits carried out by the State administrative body established under section 34 of the Law, the violations observed and the number of employer’s permits that have been cancelled and the reasons for such cancellation.

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

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Articles 1(1) and 2(1) of the Convention. Freedom of career members of the armed forces to leave their service. The Committee previously noted the Government’s indication that army officials are considered public servants, their rights are governed by the Mongolian Public Service Law and the Law on the Rights and Duties of Civil Soldiers. It requested the Government to provide information on the conditions under which career members of the armed forces may leave the service, in time of peace, at their own request, and to indicate the number of applications to resign that have been accepted or refused.

The Committee notes the Government’s statement that statistical information is not available in this respect. It recalls that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of their right to leave the service in peacetime within a reasonable period, either at specific intervals, or with previous notice.The Committee requests the Government to indicate whether members of the armed forces are free to leave the service in peacetime within a reasonable period, and to clearly indicate the provisions applicable in this regard.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee previously noted that the Law on Civil Military Services Duties and Legal Status of the Military Servicemen provides a legal framework for military service, which is compulsory for men aged between 18 and 25. Section 3 of the Law stipulates the scope of work and duties of an army official that military service is a special form of public service and consists of real military service and training. The Committee however noted that by virtue of resolution No. 107 of 22 March 2013, the Government has established the “Mongolian conscripts for reconstruction” project, pursuant to which it is possible to engage a number of army staff to work in mining, construction and infrastructure development. It requested the Government to provide information on the application in practice of this resolution.

The Committee notes that the Government does not provide any information on this matter. It notes that the revised Law on the Armed Forces, adopted in 2016, provides that the participation in reconstruction work is one of the duties of the armed forces (section 6.2.4). It also notes that construction-engineering units are included among the institutions that constitute the Mongolian military forces (section 7.3). The Committee notes that, according to the 2016 Report “Compulsory military service and conscript labour in Mongolia” of the National Human Rights Commission of Mongolia and the ILO, conscripts are involved in non-military work for the benefit of both public and private institutions. This Report indicates that non-military nature work performed by conscripts is often voluntary. However, the Committee notes that the choice is made within the context and on the basis of compulsory national service, as envisaged by the law. The existence of such a choice is not sufficient to obscure the fact that the persons concerned are mobilized in the framework of a statutory national service obligation, without necessarily performing work related to the need to ensure national defence, whose objective is at the basis of the exception allowed by Article 2(2)(a)of the Convention.The Committee requests the Government to take the necessary measures to amend its legislation in order to ensure that any work or service exacted by virtue of compulsory military service laws are of purely military nature, so as to be in conformity with the Convention. Pending the revision, the Committee requests the Government to provide information on the number of conscripts assigned to participate in non-military work.

Article 2(2)(c). 1. Work of prisoners for the benefit of private individuals. The Committee previously noted that under the Law on Enforcement of Court Decisions (2002), prison labour is compulsory for convicts, and prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. It noted that the Law on Court Decision Enforcement requires working conditions of the prisoners to be close to those in the normal labour market pursuant to section 120. Section 121 of the same Law provides that prisoners shall be paid a salary which is appropriate to the amount and quality of work done. The Committee requested the Government to continue to provide information on the work of prisoners for private companies and to provide copies of contracts concluded between a private enterprise and a penitentiary institution concerning the work of convicted prisoners.

The Committee notes the absence of information on this subject in the Government’s report. It notes the adoption of a revised Law on Enforcement of Court Decisions, on 9 June 2017. The Law provides for the detention facility internal regulations to organize compulsory labour by administrative procedure (section 145). Section 215 provides for the transfer of the prisoners’ wages to the account of the prison, and to the detainee’s account following wage deductions. Section 217 provides for labour work outside of the prison.

The Committee notes that the 2016 Study “Prison labour and employment conditions of convicts in Mongolia” of the National Human Rights Commission of Mongolia and the ILO indicates that the three prisons surveyed had contracts with private enterprises. Some inmates stated that they have been ordered to perform compulsory work for private employers. The Study further indicates that the majority of the respondents had not signed employment contracts for any work they were carrying out, and that there was evidence of unpaid labour and wage deductions that brought prisoners’ net wages close to zero. The Committee also notes that, in its observations and recommendations of December 2018, the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressed concern that in both closed and open prison regimes, work opportunities are not always remunerated (CAT/OP/MNG/1, paragraph 72). The Committee wishes to recall that prisoners’ work for private entities is permissible under Article 2(2)(c) of the Convention only if prisoners voluntarily enter into a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal, free and informed consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health.The Committee therefore requests the Government to take the necessary measures to ensure that any work or service performed by prisoners for private entities is carried out voluntarily, with their formal, freely given and informed consent, and with conditions of work approximating those of a free labour relationship, including the signing of employment contracts and the payment of wages. The Committee requests the Government to provide information in this respect.

2. Compulsory labour imposed as an alternative to imprisonment (sentence of community work). In its earlier comments, the Committee noted that an obligation to perform work may be imposed on a convicted person for 100–500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration under section 50 of the Criminal Law. The Committee requested the Government to indicate the provisions governing compulsory labour as an alternative to imprisonment and to provide information on the institutions entitled to take on persons sentenced to community work and on the type of work carried out for these institutions.

The Committee notes the Government’s information that the revised Criminal Code of 2015 sets the conditions of a sentence of socially useful labour under section 5.4. It notes that socially useful labour is unpaid work of benefit to society, pursuant to a court decision, for 240–720 hours. The Government indicates that the offices of the heads of provinces and urban districts determine the conditions under which convicted persons are assigned to carry out socially useful labour. It states that in Songinokhairkhan district of Ulaanbaatar, 15 individuals were sentenced to and carried out socially useful work, in a furniture service organization. The Committee recalls that pursuant to Article 2(2)(c) of the Convention, labour exacted as community work as a consequence of a conviction in a court is not regarded as a form of forced labour only if the 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.The Committee requests the Government to indicate the nature of institutions for which offenders may perform socially useful labour, to provide a list of the institutions authorized to take on offenders performing such sentences, and to give examples of the types of work that may be required under this penalty.

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. The Committee previously noted the establishment of the National Sub-Council on Combating Trafficking in persons to regulate the activities on combating and preventing trafficking and provide professional guidance, following the adoption of the Law on Combating Human Trafficking (2012). It noted that a National Programme on Combating Human Trafficking had been drafted to provide a plan of action in implementing anti-trafficking activities. It also noted that the Parliament passed the Law on Witness and Victim Protection in 2013, providing for protection measures for victims of trafficking. The Committee encouraged the Government to pursue its efforts to prevent, suppress and combat trafficking in persons and to provide protection and assistance, including legal assistance, to victims of trafficking.

The Government indicates in its report that the updated National Programme on Combating Human Trafficking was adopted by resolution No. 148 of 24 May 2017. This programme aims, inter alia, at: (i) organizing work to prevent and combat trafficking in persons through the study of the root causes and the conditions of this phenomena; (ii) taking and implementing measures for the protection of victims, including medical and psychological assistance; and (iii) expanding cooperation with other Governments, international organizations and non-state organizations. The Government further states that the Minister of Justice and Home Affairs and the Chairman of the Coordinating Council for the Prevention of Crimes of Human Trafficking have approved in 2018 the Implementation Schedule for the National Programme on combating Human Trafficking. In this framework, the Ministry of Justice and Home Affairs and other organizations have implemented in 2018 a joint plan and set up training courses on the provision of assistance to victims of human rights and the identification of the victims for staff of the Ministry of External Relations, the Border Protection Agency, the Office for Foreign Nationals and the border Offices in Dornogov’ Province. The Government also indicates that resolution No. A/173 regulates the composition and functions of the Sub-Council on Combating Trafficking in persons.

The Committee notes that the Criminal Code of 2015, which entered into force in July 2017, provides for a sentence of imprisonment of two to eight years for trafficking in persons for the purposes of labour and sexual exploitation, and of five to 12 years for cross-border trafficking. It also notes that, according to the 17th Status Report on human rights and freedoms issued in 2018 by the National Human Rights Commission of Mongolia, the National Programme on Combating Human Trafficking is a four year programme (2017–21), section 5.2 of which provides for comprehensive legal, psychological, medical and rehabilitative services for victims of trafficking and the establishment of shelters. This Report also indicates that in November 2017, ten criminal cases of trafficking in persons were registered at the national level, according to information received from the Ministry of Justice and Home Affairs. A common database was created in 2016 to improve inter-sectorial coordination among the Government and non-governmental organizations in combating trafficking in persons and in registering victims and suspects. The Committee also notes that a two-year project “Improving victim-centred investigation and prosecution monitoring on human trafficking in Mongolia”, aimed at developing training manuals and at training law enforcement officials, prosecutors, judges and officers of the Immigration Department, is being implemented by the Ministry of Justice and Home Affairs and the Asia Foundation. The Committee further notes that, in its concluding observations of August 2017, the Human Rights Committee expressed concern at the lack of identification of victims and reports of arrest and detention of victims for acts committed as a direct result of being trafficked (CCPR/C/MNG/CO/6, paragraph 27). It also notes that, according to the European Commission’s document of January 2018 on the assessment of Mongolia covering the period 2016–17, there are only two trafficking-specific shelters in the country (page 10).The Committee requests the Government to provide information on the impact of the measures taken by the Government, particularly the National Programme on Combating Human Trafficking and its Implementation Schedule, in preventing trafficking in persons and in identifying and assisting victims of trafficking in persons. It also requests the Government to take the necessary measures to ensure that victims of trafficking are treated as victims rather than offenders and have access to protection and assistance, and to provide information in this respect. Lastly, the Committee requests the Government to provide information on the application in practice of the provisions criminalizing trafficking in persons.

2. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee notes that according to the ILO’s Mongolia Policy Brief on Forced Labour of June 2016, reports indicated that tens of thousands of Chinese construction and mining workers entered Mongolia with tourist visas through a Chinese labour agency and were sold to Mongolian employers, their passports being confiscated upon arrival. In addition, according to this Policy Brief and the concluding observations of the Human Rights Committee of August 2017 (CCPR/C/MNG/CO/6, paragraph 29), migrants from the Democratic People’s Republic of Korea (DPRK) worked in Mongolia, in conditions tantamount to forced labour, and were prohibited from leaving work with their wages paid directly to a North Korean Government agency. The Committee recalls the importance of taking effective measures to ensure that the system of the employment of migrant workers does not place the workers concerned in a situation of increased vulnerability, particularly when they are subjected to abusive employer practices such as retention of passports, deprivation of liberty, non-payment of wages, and physical abuse, as such practice might cause their employment to be transformed into situations that could amount to forced labour.The Committee requests the Government to take the necessary measures to ensure that migrant workers are fully protected from abusive practices and conditions amounting to the exaction of forced labour and to provide information on the measures taken in this regard. It requests the Government to supply information on the number of identified victims of forced labour among migrant workers, and on the number of investigations, prosecutions and sanctions imposed on the perpetrators.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

CMNT_TITLE

Articles 1(1) and 2(1) of the Convention. Freedom of career members of the armed forces to leave their service. The Committee previously noted the Government’s indication that army officials are considered public servants, their rights are governed by the Mongolian Public Service Law and the Law on the Rights and Duties of Civil Soldiers. It requested the Government to provide information on the conditions under which career members of the armed forces may leave the service, in time of peace, at their own request, and to indicate the number of applications to resign that have been accepted or refused.

The Committee notes the Government’s statement that statistical information is not available in this respect. It recalls that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of their right to leave the service in peacetime within a reasonable period, either at specific intervals, or with previous notice. The Committee requests the Government to indicate whether members of the armed forces are free to leave the service in peacetime within a reasonable period, and to clearly indicate the provisions applicable in this regard.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee previously noted that the Law on Civil Military Services Duties and Legal Status of the Military Servicemen provides a legal framework for military service, which is compulsory for men aged between 18 and 25. Section 3 of the Law stipulates the scope of work and duties of an army official that military service is a special form of public service and consists of real military service and training. The Committee however noted that by virtue of resolution No. 107 of 22 March 2013, the Government has established the “Mongolian conscripts for reconstruction” project, pursuant to which it is possible to engage a number of army staff to work in mining, construction and infrastructure development. It requested the Government to provide information on the application in practice of this resolution.

The Committee notes that the Government does not provide any information on this matter. It notes that the revised Law on the Armed Forces, adopted in 2016, provides that the participation in reconstruction work is one of the duties of the armed forces (section 6.2.4). It also notes that construction-engineering units are included among the institutions that constitute the Mongolian military forces (section 7.3). The Committee notes that, according to the 2016 Report “Compulsory military service and conscript labour in Mongolia” of the National Human Rights Commission of Mongolia and the ILO, conscripts are involved in non-military work for the benefit of both public and private institutions. This Report indicates that non-military nature work performed by conscripts is often voluntary. However, the Committee notes that the choice is made within the context and on the basis of compulsory national service, as envisaged by the law. The existence of such a choice is not sufficient to obscure the fact that the persons concerned are mobilized in the framework of a statutory national service obligation, without necessarily performing work related to the need to ensure national defence, whose objective is at the basis of the exception allowed by Article 2(2)(a) of the Convention. The Committee requests the Government to take the necessary measures to amend its legislation in order to ensure that any work or service exacted by virtue of compulsory military service laws are of purely military nature, so as to be in conformity with the Convention. Pending the revision, the Committee requests the Government to provide information on the number of conscripts assigned to participate in non-military work.

Article 2(2)(c). 1. Work of prisoners for the benefit of private individuals. The Committee previously noted that under the Law on Enforcement of Court Decisions (2002), prison labour is compulsory for convicts, and prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. It noted that the Law on Court Decision Enforcement requires working conditions of the prisoners to be close to those in the normal labour market pursuant to section 120. Section 121 of the same Law provides that prisoners shall be paid a salary which is appropriate to the amount and quality of work done. The Committee requested the Government to continue to provide information on the work of prisoners for private companies and to provide copies of contracts concluded between a private enterprise and a penitentiary institution concerning the work of convicted prisoners.

The Committee notes the absence of information on this subject in the Government’s report. It notes the adoption of a revised Law on Enforcement of Court Decisions, on 9 June 2017. The Law provides for the detention facility internal regulations to organize compulsory labour by administrative procedure (section 145). Section 215 provides for the transfer of the prisoners’ wages to the account of the prison, and to the detainee’s account following wage deductions. Section 217 provides for labour work outside of the prison.

The Committee notes that the 2016 Study “Prison labour and employment conditions of convicts in Mongolia” of the National Human Rights Commission of Mongolia and the ILO indicates that the three prisons surveyed had contracts with private enterprises. Some inmates stated that they have been ordered to perform compulsory work for private employers. The Study further indicates that the majority of the respondents had not signed employment contracts for any work they were carrying out, and that there was evidence of unpaid labour and wage deductions that brought prisoners’ net wages close to zero. The Committee also notes that, in its observations and recommendations of December 2018, the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressed concern that in both closed and open prison regimes, work opportunities are not always remunerated (CAT/OP/MNG/1, paragraph 72). The Committee wishes to recall that prisoners’ work for private entities is permissible under Article 2(2)(c) of the Convention only if prisoners voluntarily enter into a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal, free and informed consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. The Committee therefore requests the Government to take the necessary measures to ensure that any work or service performed by prisoners for private entities is carried out voluntarily, with their formal, freely given and informed consent, and with conditions of work approximating those of a free labour relationship, including the signing of employment contracts and the payment of wages. The Committee requests the Government to provide information in this respect.

2. Compulsory labour imposed as an alternative to imprisonment (sentence of community work). In its earlier comments, the Committee noted that an obligation to perform work may be imposed on a convicted person for 100–500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration under section 50 of the Criminal Law. The Committee requested the Government to indicate the provisions governing compulsory labour as an alternative to imprisonment and to provide information on the institutions entitled to take on persons sentenced to community work and on the type of work carried out for these institutions.

The Committee notes the Government’s information that the revised Criminal Code of 2015 sets the conditions of a sentence of socially useful labour under section 5.4. It notes that socially useful labour is unpaid work of benefit to society, pursuant to a court decision, for 240–720 hours. The Government indicates that the offices of the heads of provinces and urban districts determine the conditions under which convicted persons are assigned to carry out socially useful labour. It states that in Songinokhairkhan district of Ulaanbaatar, 15 individuals were sentenced to and carried out socially useful work, in a furniture service organization. The Committee recalls that pursuant to Article 2(2)(c) of the Convention, labour exacted as community work as a consequence of a conviction in a court is not regarded as a form of forced labour only if the 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. The Committee requests the Government to indicate the nature of institutions for which offenders may perform socially useful labour, to provide a list of the institutions authorized to take on offenders performing such sentences, and to give examples of the types of work that may be required under this penalty.

CMNT_TITLE

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. The Committee previously noted the establishment of the National Sub-Council on Combating Trafficking in persons to regulate the activities on combating and preventing trafficking and provide professional guidance, following the adoption of the Law on Combating Human Trafficking (2012). It noted that a National Programme on Combating Human Trafficking had been drafted to provide a plan of action in implementing anti-trafficking activities. It also noted that the Parliament passed the Law on Witness and Victim Protection in 2013, providing for protection measures for victims of trafficking. The Committee encouraged the Government to pursue its efforts to prevent, suppress and combat trafficking in persons and to provide protection and assistance, including legal assistance, to victims of trafficking.

The Government indicates in its report that the updated National Programme on Combating Human Trafficking was adopted by resolution No. 148 of 24 May 2017. This programme aims, inter alia, at: (i) organizing work to prevent and combat trafficking in persons through the study of the root causes and the conditions of this phenomena; (ii) taking and implementing measures for the protection of victims, including medical and psychological assistance; and (iii) expanding cooperation with other Governments, international organizations and non-state organizations. The Government further states that the Minister of Justice and Home Affairs and the Chairman of the Coordinating Council for the Prevention of Crimes of Human Trafficking have approved in 2018 the Implementation Schedule for the National Programme on combating Human Trafficking. In this framework, the Ministry of Justice and Home Affairs and other organizations have implemented in 2018 a joint plan and set up training courses on the provision of assistance to victims of human rights and the identification of the victims for staff of the Ministry of External Relations, the Border Protection Agency, the Office for Foreign Nationals and the border Offices in Dornogov’ Province. The Government also indicates that resolution No. A/173 regulates the composition and functions of the Sub-Council on Combating Trafficking in persons.

The Committee notes that the Criminal Code of 2015, which entered into force in July 2017, provides for a sentence of imprisonment of two to eight years for trafficking in persons for the purposes of labour and sexual exploitation, and of five to 12 years for cross-border trafficking. It also notes that, according to the 17th Status Report on human rights and freedoms issued in 2018 by the National Human Rights Commission of Mongolia, the National Programme on Combating Human Trafficking is a four year programme (2017–21), section 5.2 of which provides for comprehensive legal, psychological, medical and rehabilitative services for victims of trafficking and the establishment of shelters. This Report also indicates that in November 2017, ten criminal cases of trafficking in persons were registered at the national level, according to information received from the Ministry of Justice and Home Affairs. A common database was created in 2016 to improve inter-sectorial coordination among the Government and non-governmental organizations in combating trafficking in persons and in registering victims and suspects. The Committee also notes that a two-year project “Improving victim-centred investigation and prosecution monitoring on human trafficking in Mongolia”, aimed at developing training manuals and at training law enforcement officials, prosecutors, judges and officers of the Immigration Department, is being implemented by the Ministry of Justice and Home Affairs and the Asia Foundation. The Committee further notes that, in its concluding observations of August 2017, the Human Rights Committee expressed concern at the lack of identification of victims and reports of arrest and detention of victims for acts committed as a direct result of being trafficked (CCPR/C/MNG/CO/6, paragraph 27). It also notes that, according to the European Commission’s document of January 2018 on the assessment of Mongolia covering the period 2016–17, there are only two trafficking-specific shelters in the country (page 10). The Committee requests the Government to provide information on the impact of the measures taken by the Government, particularly the National Programme on Combating Human Trafficking and its Implementation Schedule, in preventing trafficking in persons and in identifying and assisting victims of trafficking in persons. It also requests the Government to take the necessary measures to ensure that victims of trafficking are treated as victims rather than offenders and have access to protection and assistance, and to provide information in this respect. Lastly, the Committee requests the Government to provide information on the application in practice of the provisions criminalizing trafficking in persons.

2. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee notes that according to the ILO’s Mongolia Policy Brief on Forced Labour of June 2016, reports indicated that tens of thousands of Chinese construction and mining workers entered Mongolia with tourist visas through a Chinese labour agency and were sold to Mongolian employers, their passports being confiscated upon arrival. In addition, according to this Policy Brief and the concluding observations of the Human Rights Committee of August 2017 (CCPR/C/MNG/CO/6, paragraph 29), migrants from the Democratic People’s Republic of Korea (DPRK) worked in Mongolia, in conditions tantamount to forced labour, and were prohibited from leaving work with their wages paid directly to a North Korean Government agency. The Committee recalls the importance of taking effective measures to ensure that the system of the employment of migrant workers does not place the workers concerned in a situation of increased vulnerability, particularly when they are subjected to abusive employer practices such as retention of passports, deprivation of liberty, non-payment of wages, and physical abuse, as such practice might cause their employment to be transformed into situations that could amount to forced labour. The Committee requests the Government to take the necessary measures to ensure that migrant workers are fully protected from abusive practices and conditions amounting to the exaction of forced labour and to provide information on the measures taken in this regard. It requests the Government to supply information on the number of identified victims of forced labour among migrant workers, and on the number of investigations, prosecutions and sanctions imposed on the perpetrators.

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

CMNT_TITLE

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Law enforcement measures and penalties. In its previous comments, the Committee noted the enactment of the Law on Combating Human Trafficking (2012). The Committee requested the Government to provide information on the measures taken to prevent, suppress and combat trafficking in persons.

The Committee notes the Government’s indication that following the adoption of the Law on Combating Human Trafficking, the National Sub-Council on Combating Trafficking in persons was established in 2013 at the Ministry of Justice to regulate the activities on combating and preventing trafficking and provide professional guidance. The national programme on combating human trafficking was also drafted to provide a plan of action in implementing anti-trafficking activities. The draft plan of action includes issues related to prevention and combating certain forms of trafficking in persons, such as sexual exploitation and labour exploitation, as well as issues related to protection of victims. The Government also states that the Ministry of Justice is also working with Asia Foundation which provided training on trafficking in persons to several state’s agencies, such as the State Investigation Department of the National Police Agency, prosecutors, and lecturers from the Law Enforcement University. The Committee also notes that section 113.1 of the Criminal Code “sale and purchase of humans” has been referred to in a penal case, and in that case the Primary Criminal Court has given the defendants four years of imprisonment for having forced a child to work. The Committee finally notes that in 2014, out of 15 trafficking crimes, ten cases were criminalized and transferred to the court while five cases are under investigation. 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. The Committee also requests the Government to provide a copy of the latest plan of action adopted under the National program on combating trafficking, as well as information on the anti-trafficking activities carried out under the action plan.

2. Protection and assistance of victims. The Committee notes the Government’s indication that the Parliament passed the Law on Witness and Victim Protection in 2013 which is in force since 2014. The Law defines all forms of protection measures such as provision of personal protection to witnesses whose life and health have been damaged or may be damaged, their temporary placement in a safe shelter, and change of their appearances. The Police, Investigation Office, Takhar (Marshals) Service, Anti-Corruption Authority and the general Intelligence Agency are the bodies responsible for the implementation of protection measures. Several regulations have been issued by virtue of section 7 of the Law such as the regulations on “Changing documents of witnesses and victims”; on “Temporary placement of witnesses and victims in safe shelter as protective and security measure”, and on “providing health care assistance to witnesses and victims”. The Government further indicates that witnesses and victims who are placed in temporary safe shelter can benefit from psychological and legal assistance by the professional team of the special security unit of the Marshals Service as well as health care services and medical aid. In 2010–14, 17 victims of trafficking in persons have been placed in protection shelters, provided with legal and heath care services and their social rehabilitation work has been carried out. The Committee requests the Government to continue to take measures to provide protection and assistance, including legal assistance, to victims of trafficking. Please continue to provide information on the number of victims benefiting from these services.

Articles 1(1) and 2(1). Freedom of career members of the armed forces to leave their service. The Committee previously noted that the Law on Government Service (1995) (as amended in 2003 and 2008) is applicable to career members of the armed forces, as regards their right to leave the service. The Committee notes the Government’s indication that army officials are considered public servants, their rights are governed by the Mongolian Public Service Law and the Law on the Rights and Duties of Civil Soldiers. The Committee requests the Government to provide information on the conditions under which career members of the armed forces may leave the service, in time of peace, at their own request, indicating the number of applications to resign that have been accepted or refused.

Article 2(2)(a). Use of services exacted under compulsory military service laws. In its previous comments, the Committee requested the Government to provide information on the nature of the work carried out by conscripts under military service laws.

The Committee notes the Government’s indication that men aged between 18 and 25 must carry out military service. Law on Civil Military Services Duties and Legal Status of the Military Servicemen provides legal framework for military service, basic duties of citizen to defend the country, legal status of military servicemen and recruitment of military. Section 3 of the Law stipulates the scope of work and duties of an army official that military service is a special form of public service and consists of real military service and training.

The Committee notes however that by virtue of Resolution No. 107 of 22 March 2013, the Government has established the “Mongolian conscripts for reconstruction” project. It also notes that it is possible to engage a number of army staff, including conscripts and servicemen to work in mining, construction and infrastructure development. In this regard, the Committee recalls that, under Article 2(2)(a) of the Convention, compulsory military service is excluded from the scope of the Convention only where conscripts are assigned to work of a purely military character. The Committee also recalls that the provisions of the Convention relating to compulsory military service do not apply to career military servicemen, and the Convention consequently is not opposed to the performance of non-military work by persons serving in the armed forces on a voluntary basis.

The Committee therefore requests the Government to provide information on the application in practice of Resolution No.107 of 2013, indicating in particular how conscripts are assigned to participate in reconstruction projects, the circumstances under which they might be call upon, and the number of conscripts who participated in such projects.

Article 2(2)(c). 1. Prison labour. The Committee previously noted that under the Law on Enforcement of Court Decisions (2002), prison labour is compulsory for convicts.

The Committee notes the Government’s indication that the Law on Court Decision Enforcement requires working conditions of the prisoners to be close to those in the normal labour market pursuant to section 120. Section 121 of the same Law provides that prisoners shall be paid salary which is appropriate to the amount and quality of work done. The payment shall be transferred to the account of the prisoner directly. The Government further indicates that the Regulation Governing Labour Arrangement and Remuneration for Prison Inmates of the Chief of the General Authority for Implementing Court Decision ordinance A/32 specifies that prisoners shall receive a fixed minimum wage for part time work as reflected in the Law on Labour and they are entitled to additional payment for overtime work when they work for individuals or domestic factories. The Committee takes note of the detailed information provided by the Government regarding the types of work that is carried out by prisoners for private companies. The Committee requests the Government to continue to provide information on the work of prisoners for private companies. The Committee also requests the Government to provide in particular, copies of contracts concluded between a private enterprise and a penitentiary institution concerning the work of convicted prisoners.

2. Compulsory labour imposed as an alternative to imprisonment (sentence of community work). In its earlier comments, the Committee noted that an obligation to perform work may be imposed on a convicted person for 100–500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration under section 50 of the Criminal Law. The Committee requested the Government to indicate whether the work performed by convicted persons can be carried out for private institutions.

The Committee notes the Government’s indication that in the first five months of 2011, the capital city court imposed penalties on 62 individuals to work and the total hours of work is 18,489 hours. The Committee notes however that a copy of Decree No. 276 (2002) of the Minister of Justice and Home Affairs on community work to which the Government refers to has not been attached to the report. The Committee requests the Government to indicate the conditions under which compulsory labour as an alternative to imprisonment may be imposed on convicted persons, specifying the provisions that govern them. The Committee also requests the Government to provide information on the institutions entitled to take on persons sentenced to community work and on the types of work carried out for these institutions. Lastly, the Committee requests the Government to provide a copy of Decree No. 276 (2002) of the Minister of Justice and Home Affairs.

CMNT_TITLE

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee previously noted that there were 29 cases of trafficking in persons in 2006–08. The Committee notes the Government’s indication in its report that as a result of the increase of trafficking in persons for sexual exploitation and forced labour, the Government has taken measures to improve legislation. The Committee notes in this regard that the Government passed the Law on Combating Human Trafficking in January 2012. The Government also states that a working group of the Ministry of Justice and Home Affairs is currently developing a draft Law on Protection of Witnesses and Victims, which is expected to be submitted for discussion in 2012. As regards judicial decisions regarding human trafficking, the Government indicates that over the last five years, in total 51 crimes with 71 accused and 119 victims were registered of which eight cases were referred to the court. In the beginning of 2011, three persons were accused of trafficking in persons and sentenced to between 10.5 and 11 years imprisonment.

However, the Committee notes the concluding observations of the Human Rights Committee of March 2011 (CCPR/C/MNG/CO/5, paragraph 21) which expressed concern about the enforcement of legislation against human trafficking, as well as the lack of witness and victim protection and adequate compensation and rehabilitation measures. The Human Rights Committee regretted that a high proportion of cases of trafficking are dismissed by the courts and that the majority of prosecuted cases apply sections of the Criminal Code relating to prostitution instead of applying section 113 of the Criminal Code punishing trafficking in persons resulting in lighter sanctions.

In these circumstances, the Committee requests the Government to pursue its efforts to combat trafficking in persons and step up its action to ensure that thorough investigations and robust prosecutions are carried out of persons who commit the offence of trafficking in persons. It therefore requests the Government to provide in its next report further information on the application of section 113 of the Criminal Code in practice, including the number of investigations, prosecutions and penalties imposed. In addition, the Committee requests the Government to provide a copy of the Law on Combating Human Trafficking (2012) and hopes that the draft Law on Protection of Witnesses and Victims will soon be adopted. In this regard, the Committee requests the Government to continue to provide information on measures taken to ensure that victims of trafficking are adequately protected and assisted.

Articles 1(1) and 2(1). 1 Freedom of government employees to leave their service. The Committee previously noted that under section 24, paragraph 1(3), of the Law on Government Service (1995), government employees may be relieved of their post if they submit a request to resign from the government service. While noting that the Law contains no provisions concerning the refusal of the resignation, the Committee requested the Government to indicate whether requests for resignation have been refused in practice and, if so, what were the grounds for refusal. The Committee takes note of the Government’s response that the abovementioned provision shall not be used as a justification to refuse a request for termination of employment and that there are no registered cases whereby requests from government employees to leave their service were denied.

2. Freedom of career members of the armed forces to leave their service. The Committee previously asked the Government to indicate the provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service at their own request. The Committee notes the Government’s indication in its report that the Law on Government Service (1995) has been amended in 2003 and 2008 and that section 8, paragraph 1(6) of this Law now states that inter alia, officers of the armed forces, border and internal troops, intelligence and police officers are included in the category of government special servants. The government states that as a result of the amendments, government special servants are included in the government service with the effect that section 24, paragraph 1(3) of the Law on Government Service referred to above is also applicable to career members of the armed forces. The Committee requests the Government to provide with its next report a copy of the Law on Government Service (1995) as amended in 2003 and 2008.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee previously noted the Government’s explanations concerning the use of internal troops under the Law on Internal Military, 1995. The Committee notes the Law on the Military duty of Mongolian citizen and the Status of Military Serviceman, 1992 which regulates the status of the active and reserve military service, and the Government’s indications as regards the benefits and privileges for serving in the army. In order to ensure that services exacted under compulsory military service provisions are only used for purely military ends, the Committee requests the Government to provide information on the nature of the work carried out by the active and reserve military service and to indicate the provisions of relevant laws and regulations governing the services and activities exacted of the active and reserve military service.

Article 2(2)(c). 1. Prison labour. The Committee earlier noted that, under the Law on Enforcement of Court Decisions (2002), prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. Under section 120 of the Law, prison labour is compulsory for convicts. The Committee also previously noted the Government’s indications that a woman’s prison had contracted with private companies for prison labour, causing conflicts in terms of companies hiring prisoners as a source of cheap labour, unequal working hours and the absence of regulations regarding occupational safety and health measures.

The Committee recalled that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to, or placed at, the disposal of private enterprises. However, work for private enterprises can be deemed compatible with Article 2(2)(c) if prisoners voluntarily enter into a normal employment relationship with private employers and perform work in conditions approximating a free employment relationship. This arrangement necessarily requires the formal and informed consent of the person concerned, as well as further guarantees and safeguards covering the essential elements of a labour relationship, such as wages, social security and occupational safety and health. If these conditions are complied with, the work of prisoners will be removed from the scope of Article 2(2)(c) of the Convention, since no compulsion is involved.

The Committee notes the Government’s indication that compulsory prison labour aims to educate and socialize prisoners, provide them with vocational and livelihood training, assist them in repaying their debts and accumulate certain savings. The Government furthermore states that of the 400 women who serve a prison sentence, over 70 women work at the sewing workshop at the prison producing garments and supplying them to companies. The Committee notes the Government’s indication that according to the Law on Enforcement of Court Decisions (2002) criminal offenders serving sentences in penitentiary institutions work under appropriate control on the basis of labour contracts with economic entities, organizations or individuals. The Government states that these compulsory labour relations are regulated according to the Law on Forced Labour as Administrative Sanction (2000).

The Committee notes that the Law on Forced Labour as Administrative Sanction (2000) regulates compulsory labour imposed on persons arrested under administrative procedures (section 1). Section 5 of the Law provides that: the Court shall issue the decision to impose forced labour taking into account the health and labour capacity of the person concerned; the duration of labour shall not exceed the duration of detention; the aimag (administrative subdivision) and capital city governors’ office shall provide workplaces for compulsory labour, the conditions of labour shall meet the occupational safety and health requirements in national laws and regulations; standards and rates for labour imposed shall apply the general standards and rates for such labour and expenses incurred in the arrest facility shall be deducted from prisoners’ wages.

The Committee requests the Government to provide a copy of the Law on Forced Labour as Administrative Sanction (2000). The Committee also requests the Government to provide copies of laws and regulations governing the conditions of compulsory labour, carried out by convicts under criminal procedures, in particular as regards occupational safety and health and wage levels. The Committee again requests the Government to provide a copy of the Law on Enforcement of Court Decisions (2002).

Referring to the above considerations concerning the prohibition contained in Article 2(2)(c) of the Convention, the Committee furthermore requests the Government to provide information on how it is ensured that the work of prisoners for private enterprises is only carried out with their formal, free and informed consent. The Committee also requests the Government to provide information on the work of prisoners for private companies, including copies of the labour contracts concluded with convicts, as well as contracts concluded between penitentiary institutions and private users of prison labour.

2. Compulsory labour imposed as an alternative to imprisonment. The Committee previously noted that, under section 50 of the Criminal Law, an obligation to perform labour may be imposed on a convicted person for 100–500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration. It may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations. The Committee notes the Government’s indication that in the first five months of 2011, the capital city court sentenced 62 individuals to different kinds of penalties involving 18,480 hours of labour. In light of the considerations pertaining to Article 2(2)(c) as explained above and noting the absence of information in the Government’s report on this point, the Committee again requests the Government to indicate, in its next report, whether such labour can be performed for any private institutions, giving also examples of the types of work to be performed by convicted persons. The Committee also reiterates its request to communicate a copy of Decree No. 276 (2002) of the Minister of Justice and Home Affairs concerning this issue and Order No. 139 (2004) issued by the Chief of the General Police Department.

3. Compulsory labour for alcoholics and drug addicts. The Committee notes the Law on Forced Medical Treatment and Labour of Individuals Addicted to Alcohol and Narcotic Substances (2000) according to which compulsory labour may be imposed on a person by virtue of a court decision in order to pay for the medical treatment and service expenses incurred. The Committee notes that section 13 of the Law sets out the conditions governing compulsory labour relating inter alia to occupational safety and health, wages and salaries. The Committee requests the Government to indicate what types of work are performed by alcoholics and drug addicts sentenced to compulsory labour and whether such labour can be performed for private individuals, companies or associations.

Article 2(2)(d). Cases of emergency. The Committee previously noted the Government’s indications as regards limitations on citizens’ rights upon declaration of a state of emergency. The Committee notes the Law on State of Emergency (2000) provided by the Government, which stipulates the grounds and procedures of declaring a state of emergency (sections 4–7) and provides certain limitations on citizens’ rights in terms of termination of employment and transfer; working hours, days and shifts (section 16(2)). Section 16(2)(6) of the abovementioned Law provides for public labour mobilization if there is an emergency circumstance to redress the repercussions created due to the emergency condition. The Committee duly notes that section 17 of the Law specifies that the scope and limit to implement emergency measures should be compatible with the demand of the emergency circumstance created and the obligation of Mongolia under international treaties on human rights. The Committee furthermore notes the Government’s indications regarding state policies during emergency situations, which are aimed at eliminating its consequences and providing aid, assistance and medical care.

CMNT_TITLE

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:

Repetition

Communication of texts. The Committee again requests the Government to supply, with its next report, copies of the Law on Forced Medical Treatment and Labour of Individuals Addicted to Alcohol and Narcotic Substances (2000), the Law on Forced Labour as Administrative Sanction (2000), the Law on Legal Status of Military Personnel and Persons Liable to Military Service (1992), and the Law on Emergency, 1995.

Articles 1(1) and 2(1) of the Convention. Freedom of Government employees to leave their service. The Committee previously noted that under section 24, paragraph 1(3), of the Law on Government Service (1995), government employees may be relieved of their post if they submit a request to resign from the government service. The Government indicated in its last report that the competent authority of the relevant government body shall make a decision on such requests. It also stated that the Law does not provide for grounds to refuse the submitted request to resign from government service. While noting that the Law contains no provisions concerning the refusal of the resignation, the Committee requests the Government to indicate whether requests for resignation have been refused in practice and, if so, what were the grounds for refusal.

Freedom of career members of the armed forces to leave their service. The Committee previously asked the Government to indicate provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service at their own request. In its last report, the Government referred in this connection to section 24, paragraph 1(3), of the Law on Government Service referred to above. However, section 3(3) of the Law does not seem to include military service into the scope of this Law. The Committee requests the Government to clarify this issue and to indicate clearly the provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee previously noted the Government’s explanations concerning the use of internal troops under the Law on Internal Military, 1995. It requests the Government to indicate what guarantees are provided to ensure that services exacted under compulsory military service provisions of the Law on the Legal Status of Military Personnel and Persons Liable to Military Service, 1992, are used for purely military ends.

Article 2(2)(c). Prison labour. The Committee previously noted the Government’s indication that, under the Law on Enforcement of Court Decisions, 2002, prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. Under section 120 of the Law, prison labour is compulsory for convicts. The Government further indicated that, in 2002, a women’s prison contracted with three private companies for prisoners to sew shirts, harvest crop and work in a cashmere factory. According to the Government’s last report, some labour contracts present the following conflicts: payment for prison labour is less than that paid to other workers for the same services; some companies hire prisoners as a source of cheap labour; uniforms, necessary tools, equipment and occupational safety measures are not reflected in the labour contracts; and the duration of working hours is specified unequally. Moreover, the Government indicated that some entities employ prisoners without a labour contract.

While noting these indications, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to, or placed at, the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private companies, even under public supervision and control. In fact, under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to, or placed at, the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are applied cumulatively, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to, or placed at, the disposal of private individuals, companies or associations.

Referring to the explanations in paragraphs 59–60 and 114–120 of its General Survey of 2007 on the eradication of forced labour, the Committee points out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain the prisoners’ formal, informed consent to work for private enterprises, both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health.

The Committee therefore hopes that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private companies both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as explained above. The Committee requests the Government to provide, in its next report, information on the progress made in this regard. Pending the adoption of such measures, the Committee asks the Government to continue to supply information on the work of prisoners for private companies, including sample copies of the labour contracts concluded with convicts, as well as contracts concluded between penitentiary institutions and private users of prison labour.

Compulsory labour imposed as an alternative to imprisonment. The Committee previously noted that, under section 50 of the Criminal Law, an obligation to perform labour may be imposed on a convicted person for 100 to 500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration. It may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations. Referring to the above considerations concerning the prohibition contained in Article 2(2)(c), as well as to the explanations in paragraphs 123–128 in its General Survey of 2007 on the eradication of forced labour, the Committee requests the Government to indicate, in its next report, whether such labour can be performed for any private institutions, such as, e.g. charitable bodies, and to provide a list of authorized associations and institutions, giving also examples of the types of work to be performed by convicted persons. Please also communicate a copy of Decree No. 276 (2002) of the Minister of Justice and Home Affairs concerning this issue.

Article 2(2)(d). Cases of emergency. The Committee noted the Government’s indication that, under the Law on Emergency (1995), once a state of emergency is declared, the citizens’ rights can be limited regarding, inter alia, termination of employment and transfer; working hours, days and shifts; and the call up of labour among the public “in order to cease occurred danger and circumstances”. The Committee also noted that, under section 20.2 of the Law on Disaster Protection, 2003, the citizens have a duty to participate in disaster prevention and take part in disaster protection resource units. The Committee requests the Government to indicate, in its next report, what guarantees are provided to ensure that the power to call up labour during a state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in case of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.

Article 25. Penal sanctions regarding trafficking in persons. The Committee previously noted the Government’s indication that, in 2006–08, there were 29 cases of human trafficking. The Committee requests the Government to provide information on the judicial decisions regarding human trafficking, particularly those applying section 113 of the Criminal Code punishing trafficking in persons. Please also continue to provide information on various measures to combat trafficking taken under the National Anti-Trafficking Action Plan, indicating, in particular, the measures taken with a view to strengthening the legal framework regarding human trafficking and protecting the victims. Please also provide information on any other legal proceedings which might have been instituted as a consequence of the illegal exaction of forced or compulsory labour and on the penalties imposed.

CMNT_TITLE

The Committee notes the Government’s report as well as the comments made by the Mongolian Employers’ Federation (MONEF), communicated with the report.

Communication of texts. The Committee again requests the Government to supply, with its next report, copies of the Law on Forced Medical Treatment and Labour of Individuals Addicted to Alcohol and Narcotic Substances (2000), the Law on Forced Labour as Administrative Sanction (2000), the Law on Legal Status of Military Personnel and Persons Liable to Military Service (1992), and the Law on Emergency, 1995.

Articles 1(1) and 2(1) of the Convention. Freedom of Government employees to leave their service. The Committee previously noted that under section 24, paragraph 1(3), of the Law on Government Service (1995), government employees may be relieved of their post if they submit a request to resign from the government service. The Government indicates in its report that the competent authority of the relevant government body shall make a decision on such requests. It also states that the Law does not provide for grounds to refuse the submitted request to resign from government service. While noting that the Law contains no provisions concerning the refusal of the resignation, the Committee requests the Government to indicate whether requests for resignation have been refused in practice and, if so, what were the grounds for refusal.

Freedom of career members of the armed forces to leave their service. The Committee previously asked the Government to indicate provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service at their own request. In its report, the Government refers in this connection to section 24, paragraph 1(3), of the Law on Government Service referred to above. However, section 3(3) of the Law does not seem to include military service into the scope of this Law. The Committee requests the Government to clarify this issue and to indicate clearly the provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(a). Use of services exacted under compulsory military service laws. The Committee notes the Government’s explanations in the report concerning the use of internal troops under the Law on Internal Military, 1995. It requests the Government to indicate what guarantees are provided to ensure that services exacted under compulsory military service provisions of the Law on the Legal Status of Military Personnel and Persons Liable to Military Service, 1992, are used for purely military ends.

Article 2(2)(c). Prison labour. The Committee notes the Government’s indication in the report that, under the Law on Enforcement of Court Decisions, 2002, prisoners may perform labour under the supervision of the inspector through establishing a labour contract with an entity, agency or individual. Under section 120 of the Law, prison labour is compulsory for convicts. The Government further indicates, in particular, that, in 2002, a women’s prison contracted with three private companies for prisoners to sew shirts, harvest crop and work in a cashmere factory. According to the report, some labour contracts present the following conflicts: payment for prison labour is less than that paid to other workers for the same services; some companies hire prisoners as a source of cheap labour; uniforms, necessary tools, equipment and occupational safety measures are not reflected in the labour contracts; and the duration of working hours is specified unequally. Moreover, the Government indicates that some entities employ prisoners without a labour contract.

While noting these indications, the Committee recalls that Article 2(2)(c) of the Convention expressly prohibits that convicted prisoners are hired to, or placed at, the disposal of private individuals, companies or associations, in a sense that the exception from the scope of the Convention provided for in this Article for compulsory prison labour does not extend to work of prisoners for private companies, even under public supervision and control. In fact, under this provision of the Convention, work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention only if two conditions are met, namely: (i) that the said work or service is carried out under the supervision and control of a public authority; and (ii) that the said person is not hired to, or placed at, the disposal of private individuals, companies or associations. The Committee has always made it clear that the two conditions are applied cumulatively, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to, or placed at, the disposal of private individuals, companies or associations.

Referring to the explanations in paragraphs 59–60 and 114–120 of its General Survey of 2007 on the eradication of forced labour, the Committee points out that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention only where the necessary safeguards exist to ensure that the prisoners concerned offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, as required by Article 2(1) of the Convention. In such a situation, work of prisoners for private companies does not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, taking into account their captive circumstances, it is necessary to obtain the prisoners’ formal, informed consent to work for private enterprises, both inside and outside prisons. Further, since such consent is given in a context of lack of freedom with limited options, there should be indicators which authenticate this free and informed consent. The Committee recalls that the most reliable indicator of the voluntariness of labour is the work performed under conditions approximating a free labour relationship, which include wage levels (leaving room for deductions and attachments), social security and occupational safety and health.

The Committee therefore hopes that the necessary measures will be taken to ensure that free and informed consent is required for the work of prisoners for private companies both inside and outside prison premises, so that such consent is free from the menace of any penalty and authenticated by the conditions of work approximating a free labour relationship, as explained above. The Committee requests the Government to provide, in its next report, information on the progress made in this regard. Pending the adoption of such measures, the Committee asks the Government to continue to supply information on the work of prisoners for private companies, including sample copies of the labour contracts concluded with convicts, as well as contracts concluded between penitentiary institutions and private users of prison labour.

Compulsory labour imposed as an alternative to imprisonment. The Committee notes that, under section 50 of the Criminal Law, an obligation to perform labour may be imposed on a convicted person for 100 to 500 hours for the benefit of society, without deprivation of the person’s freedom and without remuneration. It may be replaced by confinement in prison, if the convicted person fails to fulfil his or her labour obligations. Referring to the above considerations concerning the prohibition contained in Article 2(2)(c), as well as to the explanations in paragraphs 123–128 in its General Survey of 2007 on the eradication of forced labour, the Committee requests the Government to indicate, in its next report, whether such labour can be performed for any private institutions, such as, e.g. charitable bodies, and to provide a list of authorized associations and institutions, giving also examples of the types of work to be performed by convicted persons. Please also communicate a copy of Decree No. 276 (2002) of the Minister of Justice and Home Affairs concerning this issue.

Article 2(2)(d). Cases of emergency. The Committee notes the Government’s indication in the report that, under the Law on Emergency (1995), once a state of emergency is declared, the citizens’ rights can be limited regarding, inter alia, termination of employment and transfer; working hours, days and shifts; and the call up of labour among the public “in order to cease occurred danger and circumstances”. The Committee also notes that, under section 20.2 of the Law on Disaster Protection, 2003, the citizens have a duty to participate in disaster prevention and take part in disaster protection resource units. The Committee requests the Government to indicate, in its next report, what guarantees are provided to ensure that the power to call up labour during a state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in case of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.

Article 25. Penal sanctions regarding trafficking in persons. The Committee notes the Government’s indication in the report that, in 2006–08, there were 29 cases of human trafficking. The Committee requests the Government to provide information on the judicial decisions regarding human trafficking, particularly those applying section 113 of the Criminal Code punishing trafficking in persons. Please also continue to provide information on various measures to combat trafficking taken under the National Anti-Trafficking Action Plan, indicating, in particular, the measures taken with a view to strengthening the legal framework regarding human trafficking and protecting the victims.

Please also provide information on any other legal proceedings which might have been instituted as a consequence of the illegal exaction of forced or compulsory labour and on the penalties imposed.

CMNT_TITLE

The Committee notes with interest the information provided by the Government in its first report on the application of the Convention. It requests the Government to provide, in its next report, additional information on the following points.

Communication of texts. The Committee requests the Government to supply, with its next report, a copy of an updated and consolidated text of the Criminal Code, as well as copies of laws and regulations governing the execution of penal sentences (e.g. the Law on enforcement of court order, 2002, referred to by the Government in its report). Please also communicate copies of the Law on compulsory labour of alcoholics and narcotic addicted persons (2000), the Law on procedure for compulsory labour under administrative regulations (2000), the Law on legal status of military personnel and persons liable to military service (1992) and the Law on internal military service (1995), to which reference has been made in the Government’s report.

Articles 1(1) and 2(1) of the Convention. 1. Freedom of government employees to leave their service. The Committee notes that under section 24, paragraph 1(3) of the Law on government service (1995), government employees may be relieved of their post if they submit a request to resign from the government service. However, under paragraphs 3 and 4 of the same section, a request to resign shall be submitted only upon reaching the age ceiling for discharge from government service and upon reaching retirement age, in which cases the competent authority of the relevant government body shall make a decision on this request. The Committee requests the Government to clarify whether government employees can leave their service at their own request in other situations, before reaching the age ceiling or retirement age, and what is the procedure for their resignation on this ground (e.g. whether their request can be refused by the competent authority and what could be the grounds for refusal).

2. Freedom of career members of the armed forces to leave their service. Please indicate any provisions applicable to military officers and other career members of the armed forces, as regards their right to leave the service, in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 2(2)(a). Use of services exacted under compulsory military service laws. Please indicate what guarantees are provided to ensure that services exacted under compulsory military service laws are used for purely military ends.

Article 2(2)(c). Prison labour. Please supply copies of provisions governing the work of persons serving a sentence of imprisonment (such as e.g. Order No. A/14 of the Director of the General Department of the Execution of Court Sentences (2002)). Please indicate whether such work shall be in all cases performed in enterprises belonging to the executive penal system or in other state-owned enterprises, and what guarantees are provided to ensure that convicted prisoners are not hired to or placed at the disposal of private individuals, companies and associations.

Article 2(2)(d). Cases of emergency. The Committee notes that, under article 19(2) of the Constitution of Mongolia, in case of a state of emergency or martial law, the human rights and freedoms defined in the Constitution and other laws shall be subject to limitation by a law. The Committee requests the Government to indicate whether any special legislation on the state of emergency has been adopted and, if so, to supply a copy. Please also state what guarantees are provided to ensure that the power to call up labour during a state of emergency is limited to what is strictly required by the exigencies of the situation and that work exacted in case of emergency shall cease as soon as the circumstances that endanger the population or its normal living conditions no longer exist.

Article 25. Penalties for the illegal exaction of forced or compulsory labour. Trafficking in persons. The Committee notes the Government’s statement in the report concerning the existence of forced labour practices related to human trafficking, as well as the Government’s indications that the Criminal Code contains provisions (sections 111, 113, 115, 121 and 124) punishing trafficking in persons, commercial sexual exploitation and related crimes. The Committee requests the Government to provide information on the penalties imposed under these penal provisions, supplying sample copies of the relevant court decisions. Please also provide information on measures taken or envisaged to prevent, suppress and punish trafficking in persons for the purpose of exploitation, supplying copies of the relevant documents (such as e.g. a national anti-trafficking action plan) and available statistics. Please indicate whether there are any other penal provisions under which proceedings concerning the illegal exaction of forced or compulsory labour might have been instituted and supply information on the penalties imposed.