Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Abolition of Forced Labour Convention, 1957 (No. 105) - Algeria (Ratification: 1969)

Article 1(a) of the Convention. Punishment for expressing political views. 
1. For a number of years the Committee has referred to two provisions of the Associations Act, No. 90-31 of 4 December 1990, that allow the imposition of sentences of imprisonment involving the obligation to work in circumstances which are covered by the Convention.

–           Under section 5 of the Act, an association’s legal status is automatically invalidated if its objectives are contrary to the established institutional system, public order or offend against morals or the laws and regulations in force.

–           Section 45 provides that anyone who manages, administers or actively participates in an association that has not been approved or which has been suspended or dissolved, or facilitates meetings of the members of such an association, shall be liable to a prison term ranging from three months to two years involving the obligation to work pursuant to sections 2 and 3 of the Inter-Ministerial Order of 26 June 1983 issuing arrangements for the use of prison labour by the National Office for Educational Work.

The Committee notes that, pursuant to section 173 of Act No. 05-04 of 6 February 2005 issuing the Code on the prison system and the social integration of prisoners, the provisions implementing Ordinance No. 72-02 of 10 February 1972 remain in force on a transitional basis until the promulgation of the texts implementing Act No. 05-04 of 6 February 2005. The Committee therefore asks the Government to indicate whether texts have been adopted under the said Act and whether the Inter-Ministerial Order of 26 June 1983 has been repealed. It asks the Government to send copies of the abovementioned implementing provisions.

The Committee also notes that some provisions of Act No. 05-04 of 6 February 2005 are likely to have consequences with regard to the application of the present Convention. Indeed, under the terms of section 96 of the Act, in the context of training and also rehabilitation and social integration, the prisoner may be required, by the director of the prison and further to an opinion from the Committee for the Enforcement of Sentences, to perform useful work compatible with his state of health and his physical and mental capacity. Under section 100 of the Act, persons whose convictions are definitive may be employed as part of a team on external worksites to do work for public institutions or establishments. This section also allows prison labour to be hired to private companies which take part in the execution of public interest works. Sections 109 to 111 state that prisoners may be placed in low security penal institutions which take the form of agricultural, industrial or handicraft establishments, centres providing services or performing work in the public interest, which entail convicts working and being lodged on site. Hence, pursuant to these provisions and the abovementioned provisions of Act No. 90-31 of 4 December 1990, compulsory labour may be imposed on persons convicted for expressing political views or views ideologically opposed to the established political, social or economic system, which is contrary to the provisions of the Convention.

The Committee notes the information supplied by the Government in its latest report to the effect that the penalty laid down by section 45 of Act No. 90‑31 of 4 December 1990 concerns persons who contravene the legal provisions concerning the formation of associations, and not those who express political views, which may be expressed freely provided they comply with the legislation in force. It also notes the Government’s statement that there is no provision in Algerian law which obliges prisoners to work. The Committee notes, however, that section 45 of Act No. 90-31 of 4 December 1990 states that anyone who manages, administers or actively participates in an association which has not been approved or which has been suspended or dissolved, or facilitates meetings of the members of such an association, shall be liable to a prison term ranging from three months to two years. The Committee notes that section 2 of the Inter-Ministerial Order of 26 June 1983 provides that prisoners, in the context of their rehabilitation, training and social promotion, are required to perform useful work compatible with their health and with order, discipline and security. Moreover, prisoners may be required to work pursuant to the abovementioned provisions of Act No. 05-04 of 6 February 2005. The Committee therefore expresses the hope once again that the Government will take the necessary steps in the near future to bring its legislation into conformity with the Convention, either by amending section 45 of Act No. 90-31 of 4 December 1990 or by explicitly exempting persons convicted under this section from compulsory labour. The Committee also asks the Government to indicate whether any persons have been sentenced to imprisonment under section 45 of Act No. 90-31 of 4 December 1990, including the obligation to work pursuant to the abovementioned provisions of Act No. 05-04 of 6 February 2005 and the Inter-Ministerial Order of 26 June 1983. It asks the Government to send copies of any relevant judicial decisions.

2. In its previous comments, the Committee requested the Government to provide information on the application in practice to section 87bis of the Penal Code (Ordinance No. 95-11 of 25 February 1995) on “terrorist or subversive acts”, which provides for the imposition of sanctions of imprisonment involving compulsory prison labour. It noted the information supplied by the Government that section 87bis of the Penal Code deals with acts which, through the use of violence, target the security of the State, territorial integrity, national unity, stability and the normal working of institutions. The Committee notes that the Government indicates in its latest report that acts having a peaceful objective do not come within the scope of section 87bis.

The Committee observes, however, that the very general terms of section 87bis of the Penal Code – hindering traffic or freedom of movement on thoroughfares and occupying public places with gatherings, damaging means of communication and transport, public and private property, taking possession thereof or unduly occupying it, obstructing the actions of the public authorities or the free exercise of worship or public freedoms and also the functioning of public service establishments, hindering the operation of public institutions – may enable peaceful acts to be punished. The Committee already observed in its previous comments that actions which are non-violent but express opposition to the established political system may therefore come under the scope of section 87bis, and the imposition of prison labour on persons convicted under such provisions is contrary to Article 1(a) of the Convention.

The Committee therefore urges the Government to take the necessary measures to limit the scope of section 87bis of the Penal Code so that persons who peacefully express ideological opposition to the established political, social or economic system cannot be sentenced to a term of imprisonment which includes the obligation to work.

Article 1(d). Punishment for participating in strikes. For a number of years the Committee has referred to section 41 of Act No. 90-02 of 6 February 1990 on the prevention and settlement of collective labour disputes and the exercise of the right to strike, which states that requisition orders may be issued pursuant to the legislation in force for workers on strike who hold posts in public institutions or administrations, or in enterprises, that are essential for the safety of persons, plant and property and for the continuity of public services which are essential to the vital needs of the country, or who carry on activities essential to supplying the public. Section 42 states that, without prejudice to the penalties laid down in the Penal Code, refusal to execute a requisition order constitutes serious professional misconduct.

The Committee noted that sections 37 and 38 of Act No. 90-02 establish a list of essential services in which the right to strike is limited and for which a compulsory minimum service is to be organized. It observed that the list is very broad and includes services such as banking and radiocommunications/
broadcasting, which, according to the Committee on Freedom of Association, do not constitute essential services in the strict sense of the term (see paragraph 587 of the 2006 Digest of decisions and principles of the Freedom of Association Committee. See also the Committee of Experts’ General Survey on freedom of association and collective bargaining, 1994, paragraphs 159–160). The list in sections 37 and 38 of the Act also includes court registry services.

The Committee furthermore referred to section 43 of Act No. 90-02 prohibiting strikes in certain sectors of public institutions and administrations, such as the judiciary and customs.

It notes that section 55(1) of Act No. 90-02 provides that anyone who causes or seeks to cause, or maintains or seeks to maintain, a concerted collective stoppage of work in conflict with the provisions of this Act, but without violence or assault against persons or property, shall be liable to a term of imprisonment ranging from eight days to two months and/or a fine of 500 to 2,000 dinars.

The Committee notes the Government’s information in its report that the imposition of any penalty on workers taking part in a strike is prohibited. It also notes the Government’s statement that the organisation of a minimum service provided for by Act No. 90-02 does not constitute forced labour, the objective being to ensure the functioning of public institutions. While noting these indications, the Committee recalls that penalizing participation in strikes through imprisonment including the obligation to work is contrary to the present provisions of the Convention. It therefore requests the Government to take the necessary measures to ensure that no worker can be sentenced to a term of imprisonment including the obligation to work and to continue to provide information on the application in practice of sections 41, 43 and 51(1) of Act No. 90-02, specifying in particular the number of persons convicted and supplying copies of the relevant court decisions.

The Committee is also addressing a direct request to the Government concerning other points.