Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Forced Labour Convention, 1930 (No. 29) - Germany (Ratification: 1956)
Protocol of 2014 to the Forced Labour Convention, 1930 - Germany (Ratification: 2019)

Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private enterprises. In comments made for many years on law and practice in Germany, the Committee referred to the situation of prisoners who are obliged to work, without their consent, in workshops run by private enterprises within state prisons, in conditions bearing no resemblance whatsoever to the free labour market. The Committee pointed out on numerous occasions (see e.g. the 2007 General Survey on the eradication of forced labour, paragraph 109 and footnote 272) that the practice followed in this regard in Germany corresponds exactly to the description of the “special contract system”, a system in which the labour of prisoners is hired to private contractors. The fact that prisoners remain at all times under the authority and control of the prison administration does not detract from the fact that they are “hired to” a private enterprise – a practice designated in Article 2(2)(c) of the Convention as being incompatible with this fundamental human rights instrument.

The Committee recalled, referring also to the explanations in paragraphs 59–60 and 114–120 of the General Survey referred to above, that work by prisoners for private enterprises 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, by giving their formal, free and informed consent to work for private enterprises. In such a situation, work of prisoners for private parties would not come under the scope of the Convention, since no compulsion is involved. The Committee has considered that, in the prison context, the most reliable indicator of the voluntariness of labour is the work performed under conditions which approximate a free labour relationship, including wages (leaving room for deductions and attachments), social security and occupational safety and health.

In this connection, the Committee previously noted with regret that the requirement of the prisoner’s formal consent to be employed in a workshop run by a private enterprise, laid down in section 41(3) of the Act on the execution of sentences of 1976, had been suspended by the Second Act to improve the budget structure, of 22 December 1981, and had remained a dead letter since that time. The Committee notes with regret that, according to the Government’s latest report, no steps have been taken to bring this provision into force, and the Länder are not prepared to lay down legislation on the obligation to obtain such consent of the prisoners concerned. No steps have been taken, either by the Federal Government or by the Länder, to include prisoners in the health insurance and old-age pension schemes, since the budgetary situation of the Länder has not changed. However, the proportion of the prisoners working for private enterprises in Germany is still significant: the Government indicates that, throughout the Federal territory, an average of 12.57 per cent of all prisoners worked for private enterprises in 2008, though figures for the Länder ranged from 3 up to 19 per cent. The Government also reiterates its previous statement that the work situation in prisons is characterized by a job shortage, and the prison authorities are therefore trying to get more jobs from private companies in prisons in order to bring down the level of unemployment in penitentiary institutions.

While having noted these indications, the Committee once again expresses its concern that a significant number of the prisoners in Germany is hired to private enterprises which use their labour without their consent and in conditions bearing no resemblance whatsoever to the free labour market, in violation of this fundamental human rights Convention. While having noted the Government’s repeated statement in its reports that the Federal Constitutional Court has ruled that compulsory work of prisoners for private companies is compatible with the Basic Law, the Committee points out once again that, as explained above, the situation is still not in conformity with the Convention, both in legislation and in practice.

The Committee therefore urges the Government to take the necessary measures, both at the federal and at the Länder levels, to ensure that formal, free and informed consent is required for the work of prisoners in private enterprise workshops inside 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. In this connection, the Committee expresses the firm hope that the provision for the consent of prisoners to work in private workshops, already made in section 41(3) of the 1976 Act referred to above, will at last be brought into operation, together with the provisions regarding their contribution to the old-age pension scheme, as foreseen by section 191 et seq. of the same Act, and that the Government will soon be in a position to report the progress made in this regard.