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

Abolition of Forced Labour Convention, 1957 (No. 105) - Ecuador (Ratification: 1962)

Article 1(d) of the Convention. Sanctions of imprisonment involving compulsory labour as a punishment for participation in strikes. 1. Decree No. 105 of 7 June 1967. In the comments that it has been making for many years, the Committee has referred to Decree No. 105 of 7 June 1967, which allows a prison sentence of two to five years to be imposed on any person fomenting or taking a leading part in a collective work stoppage. The penalty laid down in the Decree for anyone who participates in such a stoppage without fomenting or taking a leading part in it is correctional imprisonment of three months to one year. For the purposes of this provision, “there is a work stoppage when there is a collective stoppage of work or the imposition of a lockout except in the cases permitted by law, the paralysing of the means of communication and similar antisocial acts”. Noting that prison sentences involve compulsory labour under sections 55 and 66 of the Penal Code, the Committee recalled that, in accordance with the Convention, prison sentences involving compulsory labour should not be imposed for peaceful participation in strikes.

The Committee notes that the Government previously indicated that the Decree No. 105 of 7 June 1967 was no longer applicable in practice, without, however, mentioning that it has been formally repealed. In its latest report, the Government refers to a current process of rationalization of the legislation. The Committee observes that Decree No. 105 of 7 June 1967 was not included among the legislation that was repealed in 2010 by Derogatory Law No. 1. The Committee expresses the firm hope, referring also to its comments addressed to the Government under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), likewise ratified by Ecuador, that, in the course of the process of rationalization of the legislation, the Government will take the necessary measures to formally repeal Decree No. 105 of 7 June 1967, so as to ensure that no penalties involving compulsory labour can be imposed for the mere fact of a peaceful participation in strikes, thereby bringing the national legislation into conformity with the Convention and the indicated practice .

2. Article 326(15) of the 2008 Constitution. The Committee previously noted with regret that, despite the comments it had been addressing to the Government on this point, the Constitution promulgated in 2008 contains a provision prohibiting the stoppage of public services which are not essential services in the strict sense of the term, such as education, transport, processing, public transport and the postal services (article 326(15)). It also noted that penalties applicable in the case of a stoppage in public services are those set out in the Penal Code. The Committee requested the Government to review the situation in the light of both Conventions Nos 87 and No.105.

Noting that the Government’s report contains no information in this regard, the Committee reiterates its hope that the Government will take the necessary measures to repeal or amend article 326(15) of the Constitution, in order to bring the above provision into compliance with Convention No. 105, which prohibits the imposition of prison sentences involving compulsory labour as a punishment for peaceful participation in strikes.

Article 1(c). Sentence of imprisonment imposed as a means of labour discipline. The Committee previously noted that under section 165 of the Maritime Police Code, crew members are prohibited from disembarking in a port other than the port of embarkation, except with the agreement of the ship’s master. Section 165 further provides that crew members who desert shall forfeit their pay and belongings to the vessel and, if recaptured, shall pay the cost of arrest and be punished in accordance with the naval regulations in force. While noting the Government’s indication concerning a process of rationalization of the legislation, the Committee reiterates its hope that the Government will not fail to take the necessary measures to repeal or amend section 165 of the Maritime Police Code, in order to bring the legislation into conformity with the Convention on this point, and that the Government will provide, in its next report, information on the progress made in this regard.

Article 1(a). Sanctions of imprisonment involving compulsory labour as a punishment for the expression of political views. The Committee previously requested the Government to provide information on the application in practice of the following sections of the Penal Code, in order to ascertain the scope of these provisions in relation to Article 1(a) of the Convention: sections 230 and 231 (disrespect or insult towards public officials); sections 130, 133, 134, 148, 153 and 155 (internal security of the State). The Committee recalled that provisions restricting the right to express peacefully a political opinion that is contrary to the established political system, if enforced with sanctions involving compulsory labour, fall within the scope of the Convention.

The Committee notes with regret that the Government’s report contains no information in this regard. It further notes that title VII of the Penal Code (Crimes Against Honour) also contains provisions punishing with imprisonment various forms of “insults”, including defamation and “defamatory accusations against an authority” (section 493). It draws the Government’s attention to the explanations contained in paragraphs 152–166 of its 2007 General Survey on the eradication of forced labour, in which it has considered that the range of activities which must be protected under Article 1(a) of the Convention comprises the freedom to express political or ideological views, which may be exercised orally and through the press and other communications media, as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views and the adoption of policies and laws reflecting them, and which also may be affected by measures of political coercion.

The Committee notes, in this connection, the press release from the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (R104/11 – 21 September 2011), in which the Office of the Special Rapporteur expresses its concern regarding the existence and application of laws that criminalize the expression of views opposed to the established political system. Referring in particular to a recent court decision which sentenced journalists to three years of imprisonment for the crime of aggravated defamation, the Office of the Special Rapporteur observes that the self-censorship that results from these types of decisions impacts not only journalists and the authorities themselves, but all of Ecuadorian society. Finally, it calls on the Government to bring its normative framework and institutional practices into compliance with the internationally recognized standards in the area of freedom of expression.

While noting the above information, the Committee hopes that the Government will take the necessary measures so as to ensure that prison sentences involving compulsory labour are not imposed for the expression of views opposed to the established political, social or economic system. The Committee once again requests the Government to provide copies of court decisions handed down under the above provisions of the Penal Code, indicating the penalties imposed.