Forced Labour Convention, 1930 (No. 29) - France (Ratification: 1937)
Protocol of 2014 to the Forced Labour Convention, 1930 - France (Ratification: 2016)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee welcomes the ratification by France of the Protocol of 2014 to the Forced Labour Convention, 1930, and duly notes the Government’s first report on its application and its replies to the Committee’s previous comments on the Convention.

Articles 1(1) and 2(1) of the Convention, and Article 1(2) of the Protocol. National plan and coordinated and systematic action. The Committee previously referred to the evaluation report of the National Advisory Commission on Human Rights (CNDH) as the national rapporteur on trafficking, concerning the National Plan of Action to Combat Trafficking in Persons 2014–16, which recommended, in particular, the allocation of sufficient financial resources for the implementation the Plan of Action and improved coordination between the institutions responsible for combating trafficking.

In its report, the Government refers to the second National Plan of Action to Combat Trafficking in Persons 2019–21, led by the Inter-ministerial Mission for the Protection of Women against Violence and the Fight against Trafficking in Persons (MIPROF). The Government states that the second Plan of Action focuses on six key areas, broken down into 45 measures, of which the main objectives are to: (i) raise public awareness of the risks of exploitation and trafficking; (ii) train professionals; (iii) protect victims (by guaranteeing the effectiveness of their rights); (iv) step up prosecutions against perpetrators; and (v) coordinate and harmonize public action at the national level. The Committee notes that, in its opinion on the “Evaluation of the National Plan of Action to Combat Trafficking in Persons (2019–21)”, published on 12 January 2023 (hereafter the “2023 Evaluation of the National Plan of Action”), the CNCDH underscores the ineffectiveness of some of the measures under the second Plan of Action; it notes that most of the measures announced have not been implemented and that the necessary funds have not been allocated. The CNCDH refers to the development of a third plan of which the publication date remains unknown.

The Committee adds that the MIPROF coordination committee on trafficking, which is composed of institutional and associative members, monitors the implementation of national actions to combat trafficking in persons. In this regard, the Committee observes that, in its 2023 Evaluation of the National Plan of Action, the CNCDH indicates that the coordination committee met once in 2020 and once in 2022, and observes that, given the low number of meetings, the coordination committee has taken on more of an advisory role.

Recalling the importance of ensuring coordinated and systematic action to combat trafficking in persons, the Committee requests the Government to indicate the measures taken to ensure the effective functioning of the MIPROF coordination committee. The Committee also requests the Government to provide information on the adoption of the third National Plan of Action to Combat Trafficking in Persons, and a summary of the action taken by the authorities to combat trafficking in persons, including under the Plan of Action, and to specify the difficulties encountered and the measures taken to overcome them. The Committee furthermore requests the Government to indicate the manner in which, in practice, coordinated and systematic action is also implemented to combat the other forms of forced labour identified in the country (see below).

Article 1(3) of the Protocol and Article 25 of the Convention. (i) Suppression and application of effective penalties. With regard to legal proceedings relating to forced labour offences, namely enslavement and the exploitation of enslaved persons (sections 224-1 A and 224-1 C of the Criminal Code), forced labour (section 225-14-1 of the Criminal Code), servitude (section 225-14-2 of the Criminal Code), and trafficking in persons (section 225-4-1 of the Criminal Code), the Government refers to several cases of trafficking in persons and forced labour, and provides statistical information on offences constituting forced labour. It indicates that, in 2020, 240 persons were prosecuted for trafficking in persons, and that fewer than five persons were prosecuted for forced labour and servitude. The Committee notes that, in 2021, according to a study on trafficking and exploitation of persons since 2016, conducted by the Ministerial Statistical Department for Internal Security, and published in October 2022, 215 persons were prosecuted for trafficking in persons, and 263 for labour exploitation (including the offences of enslavement, indecent working and living conditions, forced labour and servitude). Regarding convictions, the Government indicates that, in 2020, 67 convictions were handed down for trafficking in persons, and that imprisonment is the mostly frequently imposed sentence for perpetrators of trafficking in persons, with an average quantum of 47 months for sentences handed down between 2016 and 2020.

The Committee notes that, in its 2023 Evaluation of the National Plan of Action, the CNCDH observes the low number of convictions for trafficking and that this offence is often reclassified as another offence during the proceedings or decriminalized (that is, judged before the correctional court as an offence rather than before the court of assize as a crime, with a sentence that may be less severe) (paragraph 99).

Observing the difficulties that remain in classifying offences and effective penalties for the perpetrators of trafficking in persons, the Committee requests the Government to continue to increase the knowledge and capacity of law enforcement bodies, to ensure that cases of forced labour, as defined by the Convention, are adequately identified and are fully investigated, thus enabling the perpetrators to be brought to trial and prosecuted, and for sufficiently dissuasive penalties to be imposed. The Committee requests the Government to continue to provide information on cases concerning the various offences under the Criminal Code involving forced labour (trafficking in persons, forced labour, servitude, and enslavement), including on the number of offences reported, and prosecutions, convictions and penalties applied. The Committee also requests the Government to indicate whether, under section 225-19 of the Criminal Code, the courts have confiscated the assets of persons convicted of these offences.

(ii) Labour inspectorate and collaboration. Concerning the role of labour inspectors in the detection of offences related to trafficking in persons, forced labour and servitude, the Committee notes the Government’s indication that, with regard to trafficking in persons for the purpose of labour exploitation, the labour inspectorate most often acts within the framework of inter-institutional cooperation. The Government refers in particular to joint action days, which bring together the labour inspectorate and judicial police services, and which allowed, in 2020, for the identification of five situations of trafficking in persons, during 450 inspections of the working and employment conditions of employees. The Committee further notes the indication contained in the review of the National Plan to Combat Illegal Labour 2019–21, according to which, during the 2021 joint action days, 63 proceedings were initiated for labour exploitation that could be classified as a criminal offence involving trafficking in persons.

The Government adds that training for labour inspectors was established and that a training booklet on “identifying and referring victims of trafficking for labour exploitation”, aimed at labour inspectors, was developed by MIPROF and updated in December 2018. The Government specifies that, where findings point to the possible commission of the offence of trafficking in persons for labour exploitation, inspectors from the labour inspectors may request the Public Prosecutor’s Office to jointly refer the case to the courts together with a judicial police service.

The Committee duly notes the measures taken by the Government to build the capacity of the inspection services in order to detect situations of forced labour, including trafficking in persons for labour exploitation, and their collaboration with the Public Prosecutor’s Office and the police services, and requests the Government to pursue these efforts in light of the fundamental role of inspection in this area. The Committee requests the Government to provide information in this regard, and to indicate, in particular, the number of joint referrals requested from the Public Prosecutor’s Office, and the number of reports sent to the prosecutor by the inspection services and the action taken by the prosecutor with regard to these reports.

Article 2 of the Protocol. Prevention measures. Article 2(a) Education and information. The Committee notes the information provided by the Government on awareness-raising among students throughout their school education of the issue of trafficking in persons, and during various commemorative events. The Committee adds that, in its 2023 Evaluation of the National Plan of Action, the CNCDH states that no national awareness-raising campaign has been implemented since the creation of MIPROF, with the exception of the mention of trafficking in persons for sexual exploitation in a campaign for the prevention of the purchase of services for sex. The Committee requests the Government to strengthen the measures aimed at educating and informing persons about trafficking in persons for labour exploitation and for sexual exploitation, but also concerning other forms of forced labour, and to provide information on this subject.

Article 2(b) and (e). Educating and informing employers. Supporting due diligence. The Government indicates that, under the National Plan of Action to Combat Trafficking in Persons 2019–21, a partnership agreement is being finalized between MIPROF and the most representative organizations of employers and workers. Actions to raise awareness in the business world of the consequences of the use of forced labour and of trafficking victims are also provided for under the National Plan to Combat Illegal Labour 2019–21. In this regard, the Committee notes the adoption of a new national Plan to Combat Illegal Labour 2023–27, which provides in particular for the finalization of this partnership agreement to combat trafficking in persons. The Committee further notes that, in its 2023 Evaluation of the National Plan of Action, the CNCDH indicates that a “trafficking in persons” focal point has been designated within the labour division of each of the Regional Directorates for the Economy, Employment, Labour and Solidarity (DREETSs), of which the role is specifically to facilitate the dissemination and adoption of information and awareness-raising tools and initiatives by business stakeholders in the territories.

Lastly, the Committee notes that Act No. 2017-399 of 27 March 2017 on the duty of care of parent companies and contracting enterprises provides that the largest enterprises are required to establish and implement a vigilance plan to prevent serious violations of environmental and human rights, by both subsidiary enterprises and subcontractors. The Committee welcomes these initiatives and requests the Government to provide information on the application in practice of the Act of 27 March 2017, and to specify the manner in which the enterprises concernedcomply with the obligation to draw up and implement a vigilance plan, particularly with regard to the risk of forced labour, and whether an impact assessment of these plans on the prevention of all forms of forced labour has been carried out. The Committee also requests the Government to provide information on the progress made concerning the conclusion of the aforementioned partnership between MIPROF and the social partners.

Article 3 of the Protocol. (i) Identification of victims. The Government refers to a 2019 report on the profile of trafficking victims monitored by associations, which was drafted by MIPROF and the National Observatory on Delinquency and Criminal Law Responses (ONDRP), according to which victims of labour exploitation account for 19 per cent of all trafficking victims, with 247 victims in the area of domestic labour and 239 victims in sectors of activity such as agriculture, building and construction, catering, commerce, and hairdressing and beauty salons. The Committee notes that, according to the annual survey on trafficking victims assisted by associations in France, which was for 2021, among the victims assisted by associations in 2021, victims of labour exploitation accounted for 18 per cent, and victims of sexual exploitation represented 74 per cent. In 2021, the 44 associations that had responded to the survey identified 4,868 trafficking victims of whom 77 per cent were women. Victims from Nigeria alone accounted for 39 per cent of all the victims assisted, while 5 per cent were French victims.

The Government also indicates that MIPROF established a working group in spring 2020, which brought together institutional partners, associations, experts and the CNCDH with a view to creating a national mechanism to identify and refer victims of trafficking in persons. The group is working to develop common identification indicators for all professionals in contact with trafficking victims. The Committee hopes that the national mechanism to identify and refer victims of trafficking in persons will be adopted in the very near future, and requests the Government to provide information on the measures taken to allow for the effective application of the mechanism. The Committee also requests the Government to continue to provide information on the number of victims of offences related to forced labour (trafficking in persons, forced labour, servitude, enslavement) identified.

(ii) Protection of victims. Assistance measures. The Government indicated that the strengthening of the rights to protection of victims, particularly with regard to appropriate accommodation and psychological and social support, is included in the objectives of the second National Plan to Combat Trafficking in Persons. The Committee notes that places are made available in accommodation and reintegration services for trafficking victims to provide them with safe conditions. Furthermore, the national Ac.Sé scheme, which was created in 2001, aims to receive, house and protect trafficking victims who are at risk, and to offer assistance and support by trained professional, as well as geographical distancing thanks to a network of over 70 partner structures. Concerning psychological support, the Committee notes that, in its 2023 Evaluation of the National Plan of Action, the CNCDH refers to the creation of 17 regional centres offering comprehensive care for psychological trauma, which can receive trafficking victims. Regarding access to rights and complaints mechanisms, the Committee notes that, in its 2022 report, the Group of Experts on Action against Trafficking in Persons (GRETA) describes the difficulties faced by victims when trying to file a complaint: the waiting time for an appointment; the lack of interpreting services; or the refusal by some police officers to receive complaints, who refer victims to other structures. The Committee requests the Government to provide information on the number of trafficking victims who have benefited from assistance services, and to specify the nature of the services provided (such as social and legal support, accommodation, and health care). The Committee also requests the Government to indicate the measures taken or envisaged to facilitate access for trafficking victims, and for victims of any offence related to forced labour in general, to legal mechanisms enabling them to assert their rights.

Right of residence for foreign nationals who are victims of forced labour. The Government indicates that the current system provides for automatic admission to residence for foreign nationals who file a complaint or testify in criminal proceedings against a person who the victim accuses of having committed against them acts constituting offences of trafficking in persons or procuring of persons (section L.425-1 of the Code concerning the entry and stay of foreigners and the right to asylum (CESEDA)). Where a final conviction is handed down for a defendant, foreign nationals holding a temporary residence permit under section L.425-1 are issued with a ten-year residence permit (section L.425-3 of the CESEDA).

The Government indicates that foreign nationals who do not wish to cooperate with the authorities as part of the investigation have access to residency under the exceptional residency admission scheme, in accordance with section L.435-1 of the CESEDA, which provides for the possibility to receive a residence permit for humanitarian or exceptional reasons. The Committee further notes that section L.425-4 of the CESEDA provides that a temporary residence permit for a minimum period of six months may be granted to victims of trafficking for sexual exploitation irrespective of their cooperation with the security forces, on the condition that they give up all prostitution activities and commit to a programme of reintegration.

Section R.425-1 of the CESEDA also provides for the possibility of a reflection period of 30 days to decide whether or not to benefit from the right of residence provided for in section L.425-1. During the reflection period, no relocation order may be made or enforced against the foreign national. The reflection period may be interrupted at any moment if the foreign national has, of their own initiative, renewed contact with the perpetrators of the trafficking offence.

The Committee notes that the study of trafficking in and exploitation of persons since 2016 of the Ministerial Statistical Service for Internal Security, which was published in October 2022, states that, for 2021, the provisional data show that 428 temporary residence permits were issued to victims of trafficking or procuring under section L.425-1 of the CESEDA, in addition to around 40 residence permits. Concerning the issuance of temporary residence permits for persons wishing to leave prostitution, in 2021, 566 victims received such permits. Furthermore, according to the most recent annual survey on trafficking victims assisted by associations in France, among the victims assisted by associations in 2021 who required a residence permit, 40 per cent obtained such a permit, out of whom 40 per cent obtained the permit under section L.425-1 of the CESEDA, one third under international protection (asylum application) and 28 per cent on other grounds.

The Committee further notes the CNCDH’s indication, in its 2023 Evaluation of the National Plan of Action, that around 60 per cent of prefectures have a “trafficking in persons” focal point, but underscores that, while this number continues to increase, the roles of these focal points are still not clearly defined. The CNCDH adds that sections L.425-1 and L.425-3 of the CESEDA are not widely applied and that their implementation varies considerably from one prefecture to another. The CNCDH reports a reluctance to issue residence permits on this basis, which is partly due to the widespread climate of suspicion towards migrants. The Committee requests the Government to provide information on: (i) the number of permits granted to victims of trafficking for labour exploitation and sexual exploitation, under the exceptional residency admission scheme provided for in section L.435-1 of the CESEDA, for victims who do not wish to cooperate with the authorities; (ii) the number of trafficking victims who were granted a period of reflection; (iii) the existing possibilities for foreign victims of other offences related to forced labour (such as enslavement, servitude and forced labour) to obtain a residence permit; and (iv) the role of “trafficking in persons” focal points in prefectures.

Victims of trafficking among asylum seekers. The Government indicates that, among asylum seekers, there is an increasing number of applications for particularly vulnerable persons, including victims of trafficking. According to the latest data established for 2019 by the French Office for the Protection of Refugees and Stateless Persons (OFPRA), as in previous years, the majority of trafficking is for the purpose of sexual exploitation. The Government indicates that OFPRA confirms, however, the emergence of applications for international protection in relation to trafficking for labour exploitation. Such applications particularly concern men and women claiming that they were forced to work either within a family setting or through organized networks in Bangladesh, Europe and Gulf countries.

The Government indicates that, at the end of May 2021, it published a national plan of action to strengthen means to address the vulnerability faced by asylum seekers and refugees, comprising ten specific actions to improve early identification and allow for the provision of appropriate care for asylum seekers and refugees, including: (i) the strengthening of training for all personnel in the asylum system regarding the early identification of vulnerabilities, including those linked to trafficking; (ii) the dissemination of awareness-raising tools on legislative and regulatory provisions concerning access to residence for foreign trafficking victims, at all stages of the asylum procedure, and the development of targeted information campaigns; and (iii) the strengthening of the specialized accommodation network for trafficking victims, women asylum seekers and vulnerable women refugees, which currently offers 300 places. The Committee welcomes the adoption of the national plan of action to strengthen means to address the vulnerability faced by asylum seekers and refugees, and requests the Government to continue to provide information on the measures taken to better identify and protect trafficking victims among asylum seekers.

Article 4(1) of the Protocol. Access to remedies. The Government indicates that victims of forced labour may assert their rights before criminal or civil courts. Under criminal law, any person forced to work in conditions that are characteristic of trafficking in persons, slavery, forced labour or servitude, is entitled to full compensation for damages for personal injury, even if the person is not French, provided that the acts were committed on the national territory (section 706-3 of the Code of Criminal Procedure). The Government indicates in this regard that victims may refer a complaint to the Commission for Compensation of Victims of Crime in order to obtain compensation at any stage of the proceedings, as from the filing of the complaint. Furthermore, any person acting as a civil party (that is, a civil claimant in a criminal case), who receives a final decision awarding damages to compensate for the injury suffered and the costs incurred in the proceedings, and who has not been granted compensation under the aforementioned section 706-3, may be entitled to claim, from the Agency for the Recovery and Management of Seized and Confiscated Assets, the priority payment of these amounts from the debtor’s assets that have been definitively confiscated (section 706-164 of the Code of Criminal Procedure).

With regard to civil courts, the Government reiterates that all employees, regardless of their nationality and status in the territory, who have been employed in the context of undeclared work, which often affects persons working in exploitative conditions, are entitled, in the event of termination of the employment relationship, to a lump-sum compensation equivalent to six months of wages (section L.8223-1 of the Labour Code). The payment of this compensation is not contingent on a criminal judgement finding the employer guilty of the offence of undeclared work. The Government adds that the Ministry of the Interior and the Ministry of Labour have drafted and translated into several languages leaflets to inform foreign workers of their rights in this regard. The Committee duly notes these measures and requests the Government to indicate the number of victims of trafficking in persons or any other form of forced labour who have received compensation for damages suffered, both in criminal proceedings and in the context of compensation awarded by a civil court, and to specify the amounts granted.

Paragraph 2. Absence of prosecution or penalties for unlawful activities that victims have been compelled to commit. The Government indicates that there is no specific provision in French law on the non-imposition of penalties on victims. Such a provision would undermine the constitutional principle of equality before the law implying that everyone can be held legally responsible for the acts of which they are accused. However, the Government indicates that the principle of the appropriateness of prosecution and the notion of action under constraint makes it possible to mitigate the absence of such a provision and not impose penalties on victims who are compelled to participate in unlawful activities. The Committee requests the Government to indicate the manner in which in practice it is ensured that victims of forced labour who have been compelled to commit unlawful activities are not subject to prosecution or penalties, with an indication of whether instructions have been issued in this respect to prosecutors.

Article 6 of the Protocol. Consultation with employers’ and workers’ organizations. The Committee notes that, in its 2023 Evaluation of the National Plan of Action, the CNCDH, as the national rapporteur on trafficking in persons, has requested to be fully associated, along with specialized association, trade unions, private partners and the relevant State institutions, in the formulation of the third national plan of action. The Committee requests the Government to provide information on the manner in which employers’ and workers’ organizations are consulted, particularly in the context of the formulation, implementation and evaluation of the third national plan of action to combat trafficking in persons.

Article 2(2)(c). Prison work for private enterprises. The Committee recalls that prisoners who wish to work may work for private enterprises, either on general service work for jointly managed prisons, or on productive work for private enterprises hiring labour from the prison administration, or in jointly managed establishments. A work agreement is signed between the prisoner and the prison director prior to the exercise of any occupational activity. The Committee previously requested the Government to continue to ensure that the working conditions of prisoners hired by private enterprises or jointly managed prisons approximate those of free workers.

The Committee notes the adoption of Act No. 2021-1729 on trust in judicial institutions of 22 December 2021, which provides for the establishment of a prison employment contract between the prisoner and the entity issuing the instructions (the economic operator in the case of employment for a private enterprise), replacing the work agreement between the prisoner and the prison director. The prison employment contract determines, among other matters, the duration of the contract, hours of work and conditions of work. With regard to the procedure for assignment to employment, it is envisaged that a prisoner who wishes to work first makes an application to the prison administration for authorization to work, followed by a request for assignment to a job, which can give rise to the organization of work interviews.

The Committee notes Decree No. 2022-655 of 25 April 2022 on work by prisoners, amending the Prison Code, which specifies the procedure for access to work by prisoners, as well as the content and procedures for the conclusion and implementation of the prison employment contract. With reference to remuneration, the Decree sets a minimum hourly rate of 45 per cent of the minimum wage for productive work and between 33 and 20 per cent for general service. It also envisages the possibility of the entity issuing the instructions paying productivity and seniority bonuses, or any other exceptional bonuses.

The Committee also notes Ordinance No. 2022-1336 of 19 October 2022 respecting the social rights of prisoners, issued under section 22 of Act No. 2021-1729 on trust in judicial institutions. The Ordinance provides, among other provisions, that the remuneration of prisoners performing work under a prison employment contract shall be subject to social security contributions and that the prisoners shall acquire rights to unemployment insurance and training and shall be registered with the supplementary retirement scheme. The Ordinance also provides for: (i) the reinforcement of the powers of the labour inspection services in prisons; (ii) the development of occupational medicine services in prisons; and (iii) measures to combat discrimination and harassment against working prisoners.

The Committee notes the Government’s indication that the rate of work in prisons, particularly in productive work, has decreased sharply over recent years, falling from nearly 50 per cent at the beginning of the 2000s to 29 per cent in 2021, which may be explained, among other factors, by the increase in the prison population and the delocalization or closure of enterprises established in prisons. The Government specifies that enterprises established in prisons have to deal with specific constraints and that the establishment of the general national minimum wage for prison work could lead to an even more significant decline in prison work. The Government adds that the opening up of the possibility of paying productivity and seniority bonuses, and the movement to improve the quality of prison work over the past two years, will make it possible for pay rates to come closer to those of normal work. In certain establishments, particularly in prisons, average pay may therefore attain the amount of the normal minimum wage.

The Committee welcomes the adoption of the texts referred to above, which offer certain guarantees to prisoners performing work for private entities, accordingly ensuring the conditions approximating of those of a free labour relationship. The Committee encourages the Government to continue its efforts to bring the level of remuneration of prisoners working for private enterprises or jointly managed establishments up to the rate of the national minimum wage.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Articles 1(1), 2(1) and 25 of the Convention. 1. Strengthening and effective enforcement of the legislative framework to combat all forms of forced labour. In its previous comments, the Committee noted the adoption of certain legislative measures, including Act No. 2013-711, of 5 August 2013, which incorporates into the Criminal Code the crimes of “slavery” and “exploitation of enslaved persons” (sections 224-1A to 224-1C) and supplements section 225-14 of the Criminal Code, which criminalizes the act of subjecting a vulnerable person to working conditions that are incompatible with human dignity (now section 225-14-1) by including two new offences: “forced labour” and “servitude” (sections 225-14-2 and 225 14 3, respectively). It also noted that the Act authorizes associations engaged in action to combat trafficking and slavery, which have been registered for five years at the time of the events, to exercise, with the consent of the victim, the rights granted to the plaintiff.

The Committee notes the Government’s indication in its report that labour inspection officials were previously only empowered to report offences relating to working conditions and accommodation which were contrary to the dignity of persons. Since the adoption of Act No. 2016-444 of 13 April 2016 to reinforce action to combat the system of prostitution and provide assistance to prostituted persons, and Ordinance No. 2016-413 of 7 April 2016 on the enforcement of the right to work, labour inspection officials can now identify and report offences relating to trafficking in persons, forced labour and slavery. The Government adds that the Central Office to Combat Illegal Work (OCLTI) has been dealing for several years with cases of trafficking in persons and labour exploitation, which has provided it with expertise in this field. The Office provides advice and expertise to police units and magistrates. The Committee observes that, for example, the Office detected the case of a head of an enterprise who had recruited mentally deficient persons under half-time contracts and had made them work over 50 hours a week for 20 years. The Government adds that within the framework of the European multidisciplinary platform against criminal threats (EMPACT) project which covers trafficking in persons, the labour inspectorate participated for the first time in 2017 in the Joint Action Day organized in various countries of the European Union, which associates in cooperation at the operational level the labour inspectorate and the judicial police services (gendarmerie). The Government further indicates that a working group on the training of professionals who are in contact with victims of trafficking for labour exploration was established in 2014 to prepare training tools for professionals coming into contact with victims of trafficking, including labour inspectors. A booklet on trafficking in persons has been prepared by this group for labour inspectors and will be disseminated in the near future. The Committee encourages the Government to continue taking measures to raise the awareness and train the authorities responsible for the enforcement of the law, including labour inspection officials, in action to combat forced labour, including trafficking for labour exploitation. The Committee also requests the Government to provide information on violations relating to trafficking in persons, forced labour and servitude which were identified and reported by the labour inspection services, with an indication of the measures taken in such cases. Finally, the Committee requests the Government to provide statistics on the judicial procedures initiated on the basis of all of these criminal cases, the number of convictions and the nature of the penalties imposed.

2. Trafficking in persons. In its previous comments, the Committee noted the establishment of an inter-ministerial mission (Miprof) with responsibility for the national coordination of measures to combat trafficking in persons. It also noted the adoption of a National Plan of Action to Combat Trafficking in Persons covering the period 2014–16, which includes 23 measures focusing on three priorities for action: victim identification and support; the prosecution and dismantling of trafficking networks; and the promotion of a comprehensive public policy.

The Committee notes the Government’s indication that the evaluation of the Plan of Action 2014–16 has been entrusted to the National Advisory Commission on Human Rights (CMDH) as the national rapporteur on trafficking. It notes the evaluation report of the CMDH published in March 2016. The Committee notes that the CMDH issues a number of recommendations, including: the need to mobilize the public authorities and allocate financial resources to facilitate the effective implementation the Plan of Action; and improved coordination between the institutions responsible for combating trafficking so as to ensure that all forms of trafficking, not only trafficking for sexual exploitation, but also trafficking for labour exploitation, are taken into account. The Committee requests the Government to indicate whether measures have been taken to give effect to the recommendations of the National Advisory Commission on Human Rights following its evaluation of the National Plan of Action to Combat Trafficking in Persons (2014–16) and to provide information on this subject. It also requests the Government to indicate whether a new Plan of Action has been adopted.

3. Protection of victims. The Committee notes that, with regard to the right of residence of foreign nationals who are victims of trafficking, the Government indicates that section R.316-6 of the Code on the entry and residence of foreign nationals and the right to asylum (CESEDA), as revised in 2014, establishes the full right to a residence permit, which is renewable and authorizes the exercise of an occupational activity for a foreign national who is a victim of trafficking who cooperates with the judicial authorities (by lodging a complaint or acting as a witness). The permit is renewed throughout the duration of the criminal proceedings subject to continued compliance with the conditions established. It is issued for a minimum duration of six months. The Committee notes that, in the case of victims of trafficking who do not cooperate in the investigation for any reason whatsoever, the Government indicates that they can benefit from residence permits for humanitarian reasons or on exceptional grounds, as set out in section L.313-14 of the CESEDA. The Committee also notes that the Group of Experts on Action against Trafficking in Human Beings (GRETA), in its 2017 Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by France, indicates that the French authorities have pointed out that identification is not linked to the possible cooperation of victims in a prosecution. However, civil society has emphasized that, in practice, potential victims are generally expected to cooperate, usually by lodging a complaint or through testimony that will pave the way for the prosecution of the traffickers This goes hand in hand with the fact that very few recovery and reflection periods, allowing victims to recover from their ordeal and consider the possibility of cooperating with the investigation, have been granted (paragraph 130).

With regard to the compensation of victims of trafficking, the Committee observes that section 131-21(6) of the Criminal Code now provides that, in the case of the most serious violations, including trafficking in persons, it is possible to confiscate the whole of the assets of the convicted person. The Committee also notes the Government’s indication that French law does not make a distinction between victims of forced labour and victims of illegal work, even though very frequently victims of forced labour are in a situation of hidden work. Indeed, according to the Government, victims of forced labour can assert their rights in the same way as declared workers in terms of conditions of work and remuneration, and may also be granted a flat-rate compensation equal to six months’ wages, corresponding to the minimum wage (SMIC), in the event of the break-down of the work relationship.

The Committee also notes that the CNDH emphasizes in its report that the low number of violations respecting trafficking in persons identified by the police and gendarmerie shows that potential victims of trafficking do not identify themselves as such and that they very rarely denounce their situation. Such cases are therefore significantly under-reported. The same statistics bear witness to the inadequacy of the resources allocated by France to the identification of potential victims of trafficking. Accordingly, for certain forms of exploitation (forced labour, slavery and servitude), there have been no cases identified by security forces, even though there are instances in practice. In this regard, the Committee observes the recommendation of the CNDH that indicators for the identification of victims must be developed in consultation with specialized associations. The Committee requests the Government to continue providing information on the measures adopted to reinforce the identification of victims of trafficking. The Committee also requests the Government to take the necessary measures to ensure that these victims benefit from adequate protection measures irrespective of their collaboration with the competent authorities.

Article 2(2)(c). Prison work for private enterprises. The Committee previously noted that prisoners may work for private enterprises, either on general service work for jointly managed prisons and on work related to the operation of these establishments, or on productive work for private enterprises hiring labour from the prison administration, or in jointly managed establishments. The Committee emphasized in this respect that, in order to be compatible with the Convention, work for private enterprises has to be performed under conditions that approximate those of a free employment relationship, namely with the free and informed consent of the prisoner and accompanied by a number of guarantees. The Committee noted in this respect that the obligation to undertake at least one of the types of activities offered by the head of the establishment and the director of the Prison Probation and Reintegration Service, in accordance with section 27 of the Prisons Act of 2009, did not seem to interfere with the voluntary nature of prison work, as set out in section D99(1) of the Code of Criminal Procedure. The Committee noted in this regard the Government’s indication that Decree No. 2010-1635 of 23 December 2010 issued under the Prisons Act and amending the Code of Criminal Procedure specifies the elements that have to be included in the work agreement, which has to be signed by the prisoner and the prison director prior to the exercise of an occupational activity. The Decree refers, among other elements, to the job description, working conditions, hours of work and remuneration, and indicates the hourly rate and the associated social security contributions, and where appropriate, the specific risks related to the job.

With regard to the remuneration of prisoners, section 32 of the Prisons Act provides that their wages may not be lower than the hourly rate fixed by decree and indexed upon the minimum wage. The Committee noted the Government’s indication that Decree No. 2010/1635 fixed this remuneration at 45 per cent of minimum wage for production work. The remuneration varies between 33 and 20 per cent for general work. With regard to jointly managed prisons, the Government indicated that, due to the unfavourable economic situation, they have not been able to meet their contractual objectives in terms of the number of working hours offered to prisoners, and have had to pay penalties. The Committee requested the Government to indicate the measures taken to bring the level of remuneration of prisoners working for private enterprises or jointly managed prisons closer to that of free workers.

The Committee notes that the Government has not provided information on this point. The Committee once again requests the Government to take the necessary measures to ensure that the working conditions of prisoners hired by private enterprises or jointly managed prisons approximate those of free workers and to provide information on this subject. The Committee also requests the Government to indicate the measures taken to bring the level of renumeration of these prisoners closer to the national minimum wage, particularly when they are assigned to general service work for jointly managed prisons.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 1(1), 2(1) and 25 of the Convention. 1. Strengthening of the legislative framework to combat all forms of forced labour, and effective enforcement. The Committee notes the adoption of Act No. 2013-711 of 5 August 2013. This Act incorporates the crimes of “slavery” and “exploitation of enslaved persons” into the Criminal Code (sections 224-1A and 224-1C). The Committee also notes that the Act supplements section 225-14 of the Criminal Code, which criminalized the act of subjecting a vulnerable person to working conditions that are incompatible with human dignity (now section 225-14-1), by including two new offences: “forced labour” and “servitude” (sections 225-14-2 and 225-14-3, respectively). The Act also supplements section 225-4-1 of the Criminal Code, which already criminalized trafficking in persons, by including new forms of exploitation to which victims of trafficking may be subjected and by defining in greater detail the methods used by perpetrators to subject an individual to trafficking. Moreover, with regard to all these offences, the Act authorizes anti-trafficking and anti-slavery associations that have been registered for five years at the time of the events, to exercise, with the consent of the victim, the rights granted to the plaintiff. The Committee notes with interest this legislative progress, which should enable the relevant authorities not only to categorize the acts more easily and therefore initiate the appropriate legal proceedings, but also to better identify the victims of these practices and provide them with suitable and timely protection. For this purpose, the Committee hopes that the Government will continue to take measures to raise the awareness and increase the capacity of law enforcement officers, officials of the Public Prosecutor’s Office and judges, regarding the use of the new tools provided for by the Act, and to strengthen the resources available to them. Noting the Government’s indication that it plans to authorize labour inspectors to issue reports on illegal situations involving “trafficking in persons, forced labour, slavery and practices similar to slavery”, the Committee requests the Government to provide information on this subject and to indicate how cooperation is ensured between the labour inspectorate, law enforcement services and the Office of the Public Prosecutor. The Committee also requests the Government to continue providing statistics on the legal proceedings initiated on the basis of all of these offences, the number of convictions handed down and on the nature of the penalties imposed.

2. Trafficking in persons. With regard to the specific measures taken to combat trafficking in persons, the Government indicates that an inter-ministerial mission (Miprof) was set up in January 2013, which is responsible for the national coordination of measures to combat trafficking in persons. The first National Plan of Action to Combat Trafficking in Persons has been adopted and covers the period 2014–16. The Plan identifies 23 measures focusing on three priorities for action: victim identification and support; prosecution and dismantling of trafficking networks; and promotion of a comprehensive public policy. The Committee hopes that the Government will take all the necessary measures to implement the three priorities for action of the National Plan of Action to Combat Trafficking in Persons. Please provide information on the evaluation of the policy on combatting trafficking that is to be undertaken by the National Advisory Committee on Human Rights, and particularly on the results achieved, the obstacles identified and the measures taken to overcome them.

3. Protection of victims. The Committee previously requested the Government to indicate the measures taken to strengthen protection for victims of forced labour, whether or not they are lawfully resident on the national territory, so that they can assert their rights effectively. In its report, the Government provides information on the measures to protect victims of offences, as well as the specific measures applicable to trafficking victims, and particularly the protection provided during the investigation and the legal proceedings, the issue of temporary residence permits, and accommodation centres. The Government also indicates that in the case of underground work, which is the case for a large number of victims of forced labour, the victim is entitled to a lump-sum compensation equal to at least six months’ wages if their employment relationship is terminated. While duly noting this information, the Committee observes that the National Plan of Action to Combat Trafficking in Persons recognizes that victims do not receive adequate protection and do not assert their rights, and that the assistance to victims needs to be better organized. The Committee requests the Government to continue taking measures to provide victims, throughout the national territory, with better protection and short- and medium-term assistance to prevent them from becoming victims once again. The Committee requests the Government to ensure that these measures are granted to all victims of the above offences, whether or not they cooperate with the authorities.

Article 2(2)(c). Prison work for private enterprises. The Committee previously noted that prisoners may work for private enterprises, either on general service work for jointly managed prisons and on work related to the operation of these establishments, or on productive work for private enterprises hiring labour from the prison administration, or in jointly managed establishments. The Committee emphasized, in this respect that, in order to be compatible with the Convention, work for private enterprises has to be performed under conditions that approximate to those of a free employment relationship, namely with the free and informed consent of the prisoner and accompanied by a number of guarantees. The Committee previously noted in this respect that the obligation to carry out at least one of the types of work offered by the head of the establishment and the director of the Prison Probation and Reintegration Service, pursuant to section 27 of the Prisons Act of 2009, did not seem to interfere with the voluntary nature of prison work, as set out in section D99(1) of the Code of Criminal Procedure. The Committee notes in this respect the Government’s indication that Decree No. 2010-1635 of 23 December 2010 issued under the Prisons Act and amending the Code of Criminal Procedure specified the elements that have to be included in the work agreement, which has to be signed by the prisoner and the prison director prior to the start of the work. The Decree refers particularly to the job description, working conditions, working hours and remuneration, and indicates the hourly rate and the associated social security contributions and, where appropriate, the specific risks related to the job.

With regard to the remuneration of prisoners, section 32 of the Prisons Act provides that wages may not be lower than the hourly rate fixed by decree and indexed upon the minimum wage. The Committee notes the Government’s indication that Decree No. 2010-1635 fixed this remuneration at 45 per cent of the minimum wage for production work. The remuneration varies between 33 and 20 per cent for general work. With regard to jointly managed prisons, the Government indicates that, due to the unfavourable economic environment, they have not been able to meet their contractual objectives in terms of the number of working hours offered to prisoners, and have had to pay penalties. The Committee notes all of this information and hopes that the Government will continue to ensure that the working conditions of prisoners hired by private enterprises or jointly managed prisons approximate those of free workers, and that it will provide information in this respect in future reports. Please indicate in particular the measures taken to bring the level of remuneration of prisoners closer to the national minimum wage, particularly when they are assigned to general service work for jointly managed prisons.

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

The Committee noted the observations communicated in May 2010 by the Autonomous National Union of Sciences and the National Union of Scientific Research Workers concerning the impact of the adoption of Act No. 2009-972 of 3 August 2009 concerning mobility and career paths in the public service on the application of the Convention. The Committee notes in this respect that the Government provided detailed information in November 2010 on the objectives of the Act and its implementation and, in particular, on the process of dialogue between the administration and the official concerned with respect to the jobs offered and the possibility of refusing these offers.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons and exploitation of vulnerability. In its previous comments, the Committee noted a certain number of measures taken by the Government designed to strengthen its legal and institutional machinery to combat the complex phenomenon of trafficking in persons. In this respect, it noted that the Penal Code defines the main components of trafficking in persons and provides for adequate penalties (sections 225-4-1 to 225-4-8). It also criminalizes the act of subjecting a vulnerable person to conditions of work incompatible with human dignity (section 225-14). The Committee noted that in 2007 the legislation strengthened the protection of victims of trafficking by allowing, for example, foreign victims in an irregular situation to take advantage of a 30-day cooling-off period. If they made a complaint against their aggressor, they are granted a temporary residence permit giving them the right to carry out an occupational activity; in the event of the final conviction of the person accused, the victim may be granted a long-term residence permit. The Committee requested the Government to provide information on the granting of these documents, on the measures taken to ensure that those responsible are prosecuted and on the difficulties encountered by the public authorities in this regard.

In its report, the Government points out that three criminal offences are considered tantamount to forced labour in France: trafficking in persons; abuse of vulnerability; and underground work. The competent officials to combat forced labour differ depending on the specific criminal offence (criminal investigation department, labour inspection services, customs or public finance officials, etc.). Measures to combat underground work have been a Government priority since 2004 and the Government observes that, even if all the victims of underground work are not necessarily victims of forced labour, the vast majority of forced labour victims are victims of undeground work. The setting up of operational committees to combat underground work at the level of each department, under the responsibility of public prosecutors and involving various actors (labour inspection services/police/“gendarmerie”), has made it possible to carry out coordinated and efficient actions resulting in an increase in the number of criminal offences reported; the numbers increased from 6,758 in 2003 to 14,046 in 2008 (10,457 victims in 2003 compared to 21,795 in 2008). The Government adds that the public prosecutor systematically initiates criminal proceedings against employers when victims are foreigners, or other vulnerable or weak persons.

As regards the crime of exploiting the work of vulnerable persons, the Government states that the competent authorities to deal with such violations are the labour inspection services and the criminal investigation department. The competent body within the “gendarmerie” stresses that the statistics on cases of abuse of vulnerable persons collected by the police throughout the territory do not reflect the actual trends of the phenomenon. As the labour inspection services are increasingly confronted with these situations, a ministerial instruction was issued in 2008 to reinforce that the suppression of this crime is part of the mandate of labour inspection services. In this respect, the Government states that in its opinion on trafficking and the exploitation of human beings in France, the National Advisory Human Rights Committee stressed the need to train more labour inspectors so they might identify situations of trafficking and exploitation, and to provide the labour inspectorate with adequate material resources and personnel in order to enhance the control at all workplaces.

Finally, the Government raises a number of areas in its report in which action might be taken to tackle this problem. These include: harmonizing the status of victims of forced labour who may be entitled to different rights (benefits, residence permits), depending on the nature of the crimes acknowledged by the courts; a proactive approach on the part of the labour inspection services; and the setting up of a partnership between the civil society, labour inspection services and other relevant parties.

The Committee takes due note of all this information. It observes that the priority given by the Government to combating underground work has resulted in the reporting of a greater number of violations unveiled, making it possible to initiate judicial proceedings against the perpetrators. It is therefore important that those involved in this fight should be made aware of the problem and trained to identify victims of forced labour (trafficking in persons or the exploitation of workers by abusing their situation of vulnerability). The Committee considers that although not all cases of underground work constitute forced labour, the latter is characterized by the concourse of several violations of labour law, which must be penalized as such. Furthermore, these violations must be taken as a whole, in order to assess whether they amount to criminal offences of trafficking in persons or exploitation of workers by abusing a situation of vulnerability, which themselves require specific penalties. The records of labour inspectors and criminal investigation departments should be sufficiently specific so as to enable the public prosecutor to have enough evidence to qualify the reported facts as violations and initiate criminal proceedings. The Committee therefore requests the Government to continue providing information on the measures taken to ensure that labour inspectors and the criminal investigation department are more aware and trained so as to identify situations of forced labour. Please also indicate how a better coordination among law enforcement agents (including prosecutors and judges) is sought, so as to strengthen their capacity to respond.

The Committee also points out that the vast majority of victims of human trafficking and labour exploitation are migrant workers who are in a situation of vulnerability – which is compounded when they are in an irregular situation. The Committee notes in this respect that the Government acknowledges, in its report, that depending on the criminal offence reported, the victims are not granted the same status or the same rights. The Committee points out that the victims of forced labour, irrespective of whether they are victims of trafficking in persons or exploited at work on account of their vulnerability, should, regardless of their legal status, enjoy adequate protection so as to be able to invoke their rights before the competent national authorities to obtain the benefits inherent to their job (wage arrears, social protection, etc.) and compensation for the material and moral damage suffered, as well as the conviction of perpetrators. The Committee recalls in this respect that, in accordance with Article 25 of the Convention, adequately dissuasive penalties should be strictly enforced on persons imposing forced labour. The Committee requests the Government to provide information on the measures taken to strengthen the protection of victims of forced labour, irrespective of their legal status on the national territory, so that they might effectively assert their rights. Please also provide statistical data on the violations reported, the number and types of residence documents granted to victims, the criminal proceedings initiated and the sentences handed down, either on account of trafficking in persons, subjecting a person to working conditions incompatible with human dignity or underground work.

Finally, the Committee notes the study carried out by the National Advisory Human Rights Committee on the trafficking and exploitation of human beings in France which provides an in-depth analysis of the measures taken to combat this phenomenon and makes a certain number of recommendations to the public authorities. The Committee asks the Government to indicate whether measures have been taken to follow up on these recommendations.

Article 2(2)(c). Prisoners working for private enterprises. The Committee has previously observed that prisoners may be required to work for private enterprises and in that case may be assigned to general service for jointly managed prison establishments and work related to the operation of these establishments, or to productive activities for private enterprises hiring labour from the prison administration, or in jointly managed establishments. It has stated that the guiding principles of the legislation governing prison work meet, on a number of essential points, the criteria set out by the Committee for work performed by a prisoner for a private entity to be regarded as approximating a free labour relationship and as such does not come under the prohibition set out in Article (2)(2)(c). However, some points for clarification were raised.

(a) Consent to work. Section D99, paragraph 1, of the Code of Criminal Procedure has suppressed the obligation to work in prison by stipulating that “prisoners, whatever their criminal category, may request to have a job offered to them”. The Prisons Act adopted later (13 October 2009) places all convicted persons under the obligation to carry out at least one of the activities offered to them by the head of the establishment and the director of the Prison Probation and Reintegration Service (section 27). The Committee asked the Government to clarify this point, specifying whether work may be offered in the context of the obligation to carry out an activity. The Committee notes that the Government indicates that the application of section 27 of the Act has a subsidiary role since prisoners already involved in a work activity or any other activity (teaching, training or others) are not concerned. Furthermore, the refusal to participate in an activity does not constitute a disciplinary offence.

(b) Remuneration. The Committee recalls that the ways of fixing the remuneration of prisoners depends on the type of work and the category of establishment. With regard to general service, the average remuneration level is set each year by the prison administration for all establishments, regardless of how they are managed. As regards productive activities carried out in the context of a labour hiring contract or in jointly managed establishments, a minimum remuneration threshold (SMR) must be respected. This threshold is set by the administration, but it does not constitute a minimum guaranteed remuneration for the prisoner, since workshops are audited on a monthly basis in order to verify whether the SMR has been reached by dividing the total wages by the number of hours worked: it constitutes therefore an “average collective minimum level of remuneration”. The Government adds that the minimum hourly remuneration for productive activities was €3.97 on 1 January 2010 (which represents 44.8 per cent of the hourly minimum wage – SMIC – set at €8.86 on 1 January 2010). The Government specifies that the discrepancies noted between the average wage of the workshop and the minimum wage are analysed by the head of the establishment and the contractor who take the necessary measures to redress the situation. In the case of jointly managed establishments, the contractor is required to offer prisoners a number of working hours and wages, determined in advance. If the outcome is inadequate, a penalty may be applied, including in the event of failure to respect minimum remuneration objectives.

The Committee takes note of all this information. It also notes that the draft decree implementing section 32 of the Prisons Act, establishing that remuneration for work carried out by prisoners may not be lower than an hourly rate set by decree and indexed to the SMIC, is being examined by the Senate. The Committee requests the Government to send a copy of the decree establishing the remuneration rates for general service and productive activities. The Committee hopes that the introduction into the national legislation of a minimum hourly rate of remuneration indexed to the SMIC will make it possible for the remuneration of prisoner workers to approximate that of free workers. The Committee also asks the Government to send information on the controls carried out to ensure that the minimum remuneration threshold is guaranteed, and on the number of cases in which the heads of the establishment have noted that this threshold has not been respected by the contractors, as well as those in which penalties have been imposed on jointly managed establishments for failure to respect minimum remuneration objectives.

(c) Employment contract. Under sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. Section 33 of the new Prisons Act nevertheless provides that the participation of prisoners in occupational activities organized in prison establishments give rise to the drawing up of an engagement document by the prison administration. The Committee notes the Government’s indication that the aim of this provision is to legally recognize the prisoner as a labour rights’ bearer. As the responsibility for the work is incumbent upon the head of the prison, only the latter may sign the act of engagement (and not the contractor). Noting that the elements that must be contained in the act of engagement will be specified in the decrees implementing the Prisons Act, at present being examined by the Senate, the Committee requests the Government to send it a copy of the decree adopted for this purpose.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Articles 1 (paragraph 1), 2 (paragraph 1), and 25, of the Convention. Trafficking in persons. In its previous comments, the Committee noted with interest the adoption of Act No. 2003-239 of 18 March 2003 which had inserted into the Penal Code provisions defining the trafficking of human beings as well as the penalties applicable (sections 225-4-1 to 225-4-8 of the Penal Code). It also noted the provisions criminalizing and punishing “conditions of work or accommodation incompatible with human dignity” and the interpretation by the criminal chamber of the “Cour de Cassation” of the concept of human dignity.

The Committee notes the information provided by the Government in December 2008 in its report on the application of the Abolition of Forced Labour Convention, 1957 (No. 105), on the measures taken to strengthen the legal instruments designed to combat modern slavery and in particular the trafficking of human beings. With regard to trafficking in persons, the Committee notes that Decree No. 2007-1352 of 13 September 2007, has introduced a series of provisions into the legislation designed to protect the victims of trafficking. Thus, where the police or “gendarmerie” believe that a foreigner who has been the victim of trafficking is likely to make a complaint against his attacker or give evidence in a criminal procedure, they inform the victim of his or her rights and of the possibility of taking advantage of a 30-day cooling-off period. Foreign victims who are in an irregular situation and who make a complaint against their  attacker are granted a temporary residence permit giving them the right to carry out an occupational activity, which is renewable throughout the duration of the criminal procedure. In the event of the final conviction of the person accused, the victim may be granted a long-term residence permit. The victim may also be given social and medical protection and, if necessary, police protection. The Government also indicates that a telephone helpline has been set up which gives victims the opportunity to be listened to, advised on their rights and referred on anonymously. Furthermore, investigators and magistrates are given extended powers of investigation in the context of investigations and legal proceedings initiated related to trafficking in persons. Finally, the Government provides statistics on the convictions handed down for trafficking.

The Committee notes all this information which shows the Government’s determination to strengthen its legislative measures to combat the complex phenomenon of trafficking in persons. It requests the Government to provide information on the implementation of the above legislation by indicating, in particular, whether awareness-raising activities have been carried out for the benefit of the investigation and prosecution services. With regard to the protection of victims, the Committee asks the Government to specify the number of victims who have benefited from a period of reflection, as well as a residence permit under sections R316-2, R316-3 and R316-5 of the Code on the entry and stay of foreigners and the right to asylum. Please also provide information on the measures taken to ensure that those responsible are prosecuted, whether on the initiative of the victims or on the initiative of the prosecution authorities, as well as on the difficulties encountered by the authorities in this regard. Finally, noting that the statistics provided by the Government on the number of trafficking offences punished in 2007 (19) do not specify the sentence handed down to the perpetrators, the Committee would be grateful if the Government would continue providing such information in its future reports, specifying the sentences handed down, so that it can ensure that the sentences handed down for the offence of trafficking of human beings are really adequate and strictly enforced, in accordance with Article 25 of the Convention.

Article 2, paragraph 2, subparagraph (c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee observed that prisoners may be required to work for private enterprises and in that case may be assigned to general service for jointly managed prison establishments, carrying out work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities for private enterprises hiring labour from the prison administration or in jointly managed establishments. Although, under Article 2(2)(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that where work is performed under conditions approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may be compatible with the Convention. In this regard, the Committee noted that the guiding principles of the legislation governing prison work in France met, on a number of essential points, the criteria set out by the Committee for work performed by a prisoner for a private entity to be regarded as approximating a free labour relationship and as such does not come under the prohibition set out in Article 2(2)(c). The Committee nonetheless wished to be provided with further information on certain of these criteria.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that the Code of Criminal Procedure had been amended so that each convict benefited from a sentence reduction credit calculated on the basis of the length of the sentence, which may nonetheless be withdrawn by the judge responsible for the execution of sentences in the event of bad conduct by the convict during detention (section 721(3)). The Committee requested the Government to indicate whether, in practice, a prisoner’s refusal to work could be taken into account in determining bad conduct by that prisoner. The Committee notes that, in its latest report, the Government indicates that the issue of a refusal to work, and its possible consequences, can only arise in two cases: the prisoner takes the decision to stop a paid activity in breach of the rules or established practice (for example, by not giving notice) or the prisoner refuses to take up a post offered after he has requested it. In both cases, the refusal to take up a post offered does not in itself constitute a disciplinary offence.

With regard to the issue of consent to work, the Committee notes that the new Prisons Act, adopted on 13 October 2009, places all convicted persons under the obligation to carry out an activity. Under section 27(1), all convicted persons are under the obligation to carry out at least one of the activities offered to them by the head of the establishment and the director of the Prison Probation and Reintegration Service given that these activities are designed to reintegrate the person concerned and are adapted according to their age, skills, handicap and personality. Among the activities which may be offered to prisoners, paragraph 2 mentions learning to read and write, arithmetic and the French language, where the prisoner has not mastered these skills. The Committee notes that, although work is not expressly mentioned among the activities which may be imposed on convicted persons, it emerges from the discussion of the bill in the Senate and the National Assembly that, for the legislator, work is among the activities which the convicted person may be obliged to carry out. The Committee requests the Government to clarify this point, specifying whether work may be offered in the context of the obligation to carry out an activity, insofar as the convicted person is obliged to carry out an activity. If applicable, please indicate the effect of this new provision on section D99(1) of the Code of Criminal Procedure which removed the obligation to work in prison by providing that “prisoners, irrespective of their penal category, may request that work be offered to them”.

(b) Conditions of work approximating those of a free labour relationship. Noting that, under section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing prisoners for normal conditions of free work, the Committee requested the Government to provide further information on the remuneration of prison labour and the existence of an employment contract where work is carried out for the benefit of private entities.

Remuneration. The Committee previously emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments were not covered by the exception provided for in Article 2(2)(c), and should therefore receive gross remuneration approximating the levels of remuneration applicable to the same activities performed outside prisons.

With regard to general service work, the Committee notes that the average remuneration level is set each year by the prison administration for all establishments, regardless of how they are managed.

With regard to the level of remuneration of prisoners carrying out productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee previously noted the existence of a minimum remuneration threshold (SMR) which, although not a guaranteed minimum remuneration for prisoners, was a tool used by the prison administration to control the remuneration applied by private groups. The Committee also noted that the average wages paid to prisoners when they performed productive activities for the benefit of private entities (labour hiring contracts and jointly managed establishments) were lower than those applied by the Industrial Board of Prison Establishments (RIEP). It requested the Government to provide information in this regard and to indicate whether it was envisaged that the SMR would be made binding.

The Committee notes that the Government indicates in its report that, under the labour hiring regime, the remuneration is set in relation to the index-linked guaranteed minimum wage (SMIC) according to the average level of production determined after a trial period, in accordance with the thresholds established by the circular of 20 November 1998 on labour hiring contracts and clauses. Where productive activities are delegated to private groups, the remuneration has to be in line with the SMR. The Government confirms that checks are carried out on a monthly basis for each workshop to verify whether the SMR has been reached by dividing the total wages by the number of hours worked. It therefore constitutes an average collective minimum level of remuneration but does not ensure a minimum remuneration for individual prisoners. The Government adds that the minimum hourly remuneration rate for productive activities was €3.90 on 1 January 2009 (which represents 44.21 per cent of the hourly SMIC, set at €8.82 on 1 July 2009). It emphasizes that the specific characteristics of production within a prison environment include lower productivity than in a free environment. The difference in productivity levels compared to the outside world therefore results in a remuneration level that is lower than it would be under free labour conditions.

The Committee notes the various methods of fixing the wages of prisoners engaged in productive activities. It requests the Government to provide statistics allowing a comparison of the minimum hourly rates and/or the average hourly rates applicable to productive activities in the RIEP workshops under the labour hiring regime, where the organization of the work is delegated to private groups and in the new jointly managed prison establishments.

The Committee also notes that, under section 32 of the new Prisons Act, which supplements section 717-3 of the Code of Criminal Procedure, the remuneration for work carried out by prisoners may not be below an hourly rate set by decree and indexed to the SMIC, though the rate may vary according to the regime under which prisoners are employed. The Committee requests the Government to indicate the measures taken to implement the principle set out in section 32 of the new Prisons Act and to specify the rates fixed for the various regimes under which prisoners are employed. The Committee hopes that the introduction into the national legislation of a minimum hourly rate of remuneration indexed to the SMIC will make it possible for the remuneration of prisoner workers to more closely approach that of free workers.

Employment contract. The Committee previously noted that, under sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. It hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employer, whether it is the enterprise for which the work is performed or an entity under the prison administration. In this regard, it noted that a circular had called on the establishments to make use of a “work engagement form” which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work and specifies matters such as hiring, the duration of the work, remuneration, trial periods, conditions relating to the suspension and termination of the labour relationship and requirements relating to regular attendance. The Committee requested the Government to provide further information on the nature and use of work engagement forms.

The Committee notes with interest that section 33 of the new Prisons Act provides that “the participation of prisoners in occupational activities organized in prison establishments shall give rise to the drawing up of an engagement document by the prison administration. This document, signed by the head of the establishment and the prisoner, shall set out the professional rights and obligations of the prisoner, as well as his conditions of work and remuneration”. The Committee hopes that the recognition of prisoner workers as rights bearers will enable their conditions of work to more closely approach those of free workers and requests the Government to provide a copy of a standard engagement document and to specify the information which has to be included in that document.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

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 following matters raised in its previous direct request:

1. Article 2, paragraph 2(c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee noted that Act No. 87-432 of 22 June 1987 had amended the Code of Criminal Procedure by requiring prison labour to be voluntary. It noted that prisoners who work may be assigned to general service for prison establishments, work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities. In the context of productive activities, work is carried out: (a) in the workshops of the Prison Employment Service (SEP), through the Industrial Board of Prison Establishments (RIEP); (b) for private enterprises hiring labour from the prison administration; or (c) in jointly managed establishments. In this latter case, the organization of productive activities is one of the functions entrusted to private enterprises in the context of operating contracts for jointly managed establishments. This organization of prison labour means that prisoners may, in practice, perform work for the benefit of a private enterprise. Although, under the terms of Article 2, paragraph 2(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that when work is performed under conditions of employment approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may not raise problems in relation to the application of the Convention. In this respect, it noted in its previous comments that the guiding principles of the legislation governing prison work respond on a number of essential points to the criteria set forth by the Committee for work performed by a prisoner for a private enterprise to be assimilated to a free labour relationship, and accordingly does not come under the prohibitions set out in Article 2, paragraph 2(c), of the Convention. The Committee however wishes to draw the Government’s attention to and be provided with further information on certain of these criteria which make it possible to approximate a free labour relationship.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that, under the terms of sections 720(1) and 721(1) of the Code of Criminal Procedure, there is a link between whether or not a prisoner agrees to work and the prospects for sentence reduction. By virtue of section 721(1), a reduction of sentence can be granted to prisoners where they have given sufficient proof of good conduct, while section 720 provides that work and vocational training are taken into account in assessing a convict’s reintegration potential and good behaviour. It drew the Government’s attention to the fact that this link could have an impact on consent being given freely to perform work. The Government indicated in this regard, in its report received in 2004, that the judge responsible for the application of sentences assesses reintegration potential and good behaviour on the basis of many criteria other than mere participation in work, such as behaviour during detention, involvement in socio-educational activities, the degree of compensation of the victims, the seriousness with which prisoners prepare their projects for after their release, the existence of family relations, etc. Moreover, there are a number of establishments in which the availability of work cannot fully satisfy the demand, which would amount to discrimination in relation to sentence reduction.

The Committee notes this information. It observes that, following the adoption of Act No. 2004-204 of 9 March 2004, section 720 became section 717‑3 and the provisions of section 721(1) were amended. Henceforth, each convict benefits from a sentence reduction credit calculated on the basis of the length of the sentence. This sentence reduction credit may be withdrawn by the judge responsible for the application of sentences in the event of bad conduct by the convict during detention. It would therefore appear that the link existing in the legislation between the acceptance of work and the right to sentence reduction has been removed. However, the Committee would be grateful if the Government would indicate whether, in practice, refusal of work may be taken into account in determining bad conduct by a prisoner.

(b) Conditions of work approximating those of a free labour relationship. The Committee recalls that, in accordance with section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of work under free conditions. In this context, the Committee would be grateful if the Government would provide additional information on the following points relating to the remuneration of prison labour and the existence of an employment contract when work is performed for the benefit of private enterprises.

Remuneration

In its previous comments, the Committee emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments are not covered by the exception provided for in Article 2, paragraph 2(c), of the Convention, and should therefore receive gross remuneration approximating the levels of remuneration in the same activities performed outside prisons. The Committee notes the detailed information provided by the Government in its reports received in 2004 and 2006 concerning the adjustment of remuneration of prisoners engaged in general service work. According to this information, remuneration will be adjusted each year on the basis of changes in the minimum interoccupational growth wage (SMIC) and, between 2002–06, the average daily remuneration of prisoners assigned to general service work increased by around 20 per cent (20.3 per cent for category I, 18.5 per cent for category II and 19.2 per cent for category III). The Government adds that it remains appropriate to determine a minimum amount by category below which no remuneration could be paid.

With regard to general service work in jointly managed prison establishments, the Government indicates in its 2004 report that, since January 2002, the financing of the remuneration and social contributions of prisoners engaged in these activities is provided directly by the prison administration. The management of the budgetary credits allocated for general service work is undertaken in each establishment by the head of the administration. Similarly, the number of prisoners assigned to general service work and their distribution in the three remuneration categories, according to the scale established by the head of the prison administration, are determined by decision of the director of the establishment. The Committee notes from this information that the “general service” function is no longer delegated to a private operator in the context of a management contract. It requests the Government to indicate whether this is indeed the case and to continue providing information on any change which may occur in the distribution of functions in the context of contracts for the operation of jointly managed prison establishments, where such functions affect work by prisoners. In this connection, please provide a copy of a contract for the operation of jointly managed prison establishments. Furthermore, the Committee notes that the Act on the orientation and programming of justice (2003–07) envisages the construction of 13,200 places for prisoners, including 10,800 in new prisons with new forms of public-private partnership. The Committee requests the Government to provide information on the nature of the new prison establishments, with an indication of the role played by the private operator in the provision of work to prisoners.

With regard to the level of remuneration of prisoners performing productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee notes the information report prepared in 2002 by Senator Paul Loridant for the Commission on Finance, Budgetary Supervision and the Accounts of the Nation on the supervision of budgetary item No. 904-11 of the RIEP relating to its commercial activities. It notes that the average daily remuneration for productive activities is €24 when the work is provided by the RIEP, €19 when it is performed under labour hiring contracts and €16 in jointly managed prison establishments. According to this report, in jointly managed establishments, the operating contract contains a contractual indicator known as the SMAP (minimum wage for the prison administration) for the minimum hourly remuneration rate for prisoners for productive work. The SMAP varies between 41 and 44 per cent of the minimum hourly wage. The Committee notes that the increase of the SMAP to 50 per cent of the minimum wage is one of the measures proposed in the report.

The Committee notes, according to the Government’s last report, that the SMAP has been replaced by the minimum remuneration threshold (SMR). The Government indicates that the principle of remuneration which cannot be lower than the SMR, applicable in jointly managed establishments, has been extended to workshops under concession in publicly managed establishments. The SMR is a tool used by the administration to control the remuneration applied by private groups. However, it is not a right of prisoners who work and there is no guaranteed minimum remuneration. The Committee notes all this information. It observes that, in 2006, the SMR represents 44.7 per cent of the SMIC. Noting that, according to the 2002 Senate information report referred to above, the average wages paid to prisoners when they perform productive activities for the benefit of private entities (labour-hiring contracts and jointly managed establishments) are lower than those applied by the RIEP, the Committee requests the Government to continue providing detailed information on the average wages paid to prisoners engaged in productive activities (for the RIEP and for private entities). Please also indicate whether it is envisaged making the SMR binding.

Employment contract

The Committee notes that, under the terms of sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. In its previous comments, the Committee hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration. The Government indicated in its 2004 report that the Plan for the Improvement of Labour and Employment Conditions (PACTE 2) set three objectives, including bringing prison labour closer to the generally applicable legislation. The prison administration is committed to a process of bringing the conditions under which prison work is performed as close as possible to the conditions found in the outside world. A circular has called on the establishments to make use of a “work engagement form”, which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work. It specifies matters relating to hiring, the duration of work, remuneration, trial periods, conditions relating to suspension and termination, requirements relating to regularity, etc. The Government adds that the work engagement form is an essential element in an approach aimed at the reintegration of prisoners as it prepares them for the performance of work and offers them protection and rights in exchange for a professional commitment.

The Committee also notes that the information report to the Senate, referred to above, emphasizes the need to introduce the rule of law and contracts into the prison work relationship. It raises the principle of the employment contract, while recognizing that the performance of work under detention presents specificities which require adjustments in relation to the general rules governing the employment contract. The report advocates offering employers the options of, firstly, an employment contract covered by general legal rules, concluded directly between the employer and the prisoner, with certain adjustments or, secondly, a specific public law prison labour contract, concluded by the prison administration and the prisoner, with the placing of the prisoner at the disposal of the actual employer being covered by a labour-hiring contract approximating an employment contract. The Committee also notes the opinion issued by the Economic and Social Council in February 2006 on “the conditions of the social and vocational reintegration of prisoners in France” and the report of the Court of Accounts “Detention and reintegration: The management of prisons”, published in 2006. These two authorities emphasize the need to establish a legal framework adapted to work by prisoners which specifies their rights and duties, as well as the rules applicable to their remuneration. According to the report of the Court of Accounts “the absence of a contract of employment between detainees and the enterprises which have recourse to their labour illustrates the ambiguous situation of prisoners, to which the development of the ‘work engagement forms’, advocated by the administration, only constitutes a partial response, as the latter have no legal value and are not used systematically”. The Committee hopes that the Government will be able to provide information in this next report on the progress achieved in this respect. It requests it to provide a more detailed information on the nature and use of work engagement forms.

2. Exploitation of the work of others. The Committee notes the information provided by the Government on the application of sections 225-13 and 225-14 of the Penal Code respecting the offence of obtaining the provision of unpaid services from a vulnerable or dependent person, and the offence of subjecting a vulnerable or dependent person to conditions of work or accommodation incompatible with human dignity. The Committee notes that Act No. 2003-239 of 18 March 2003 has extended the elements deemed to constitute these offences. Accordingly, it is henceforth sufficient for the vulnerability or state of dependence to be apparent or known to the person committing the offence. The Act also provides that minors or persons who are victims of such situations upon their arrival on the national territory shall be considered to be vulnerable or dependent persons which, according to the Government, makes it easier to categorize these offences when they are committed against foreign nationals. Furthermore, the penalties applicable for these offences have been increased. The Committee requests the Government to continue providing information, including statistics, on the application in practice of sections 225-13 and 225-14 of the Penal Code, and particularly to provide copies of any relevant court rulings. In this connection, the Committee notes with interest the interpretation by the Court of Cassation of the concept of human dignity.

3. Trafficking in persons. The Committee notes with interest that Act No. 2003-239 has inserted into the Penal Code a section on the trafficking of human beings (sections 225-4-1 to 225-4-8). These provisions define the trafficking of human beings and make those responsible liable to a sentence of imprisonment of seven years and a fine of €150,000, which may be increased under certain circumstances. Persons committing this offence are also liable to the confiscation of all their assets (section 225-25). The Committee would be grateful if the Government would provide information on the effect given in practice to these new provisions of the Penal Code by providing copies of court decisions on this subject. It also requests the Government to provide information on the other measures that it has adopted to combat the trafficking of persons for sexual or labour exploitation. In particular, it would be grateful to be provided with information on the difficulties encountered by the public authorities in combating this phenomenon, the measures adopted to encourage victims to approach the authorities and to provide victims with protection.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Article 2, paragraph 2(c), of the Convention. Prisoners working for private enterprises. In its previous comments, the Committee noted that Act No. 87-432 of 22 June 1987 had amended the Code of Criminal Procedure by requiring prison labour to be voluntary. It noted that prisoners who work may be assigned to general service for prison establishments, work related to the operation of these establishments, such as housekeeping tasks, cooking, laundry or maintenance, or to productive activities. In the context of productive activities, work is carried out: (a) in the workshops of the Prison Employment Service (SEP), through the Industrial Board of Prison Establishments (RIEP); (b) for private enterprises hiring labour from the prison administration; or (c) in jointly managed establishments. In this latter case, the organization of productive activities is one of the functions entrusted to private enterprises in the context of operating contracts for jointly managed establishments. This organization of prison labour means that prisoners may, in practice, perform work for the benefit of a private enterprise. Although, under the terms of Article 2, paragraph 2(c), of the Convention, prisoners may not be hired or placed at the disposal of private individuals, companies or associations, the Committee has acknowledged that when work is performed under conditions of employment approximating those of a free labour relationship, namely with the consent of the prisoner and accompanied by a number of guarantees, such work may not raise problems in relation to the application of the Convention. In this respect, it noted in its previous comments that the guiding principles of the legislation governing prison work respond on a number of essential points to the criteria set forth by the Committee for work performed by a prisoner for a private enterprise to be assimilated to a free labour relationship, and accordingly does not come under the prohibitions set out in Article 2, paragraph 2(c), of the Convention. The Committee however wishes to draw the Government’s attention to and be provided with further information on certain of these criteria which make it possible to approximate a free labour relationship.

(a) Consent to work and absence of any menace. In its previous comments, the Committee noted that, under the terms of sections 720(1) and 721(1) of the Code of Criminal Procedure, there is a link between whether or not a prisoner agrees to work and the prospects for sentence reduction. By virtue of section 721(1), a reduction of sentence can be granted to prisoners where they have given sufficient proof of good conduct, while section 720 provides that work and vocational training are taken into account in assessing a convict’s reintegration potential and good behaviour. It drew the Government’s attention to the fact that this link could have an impact on consent being given freely to perform work. The Government indicated in this regard, in its report received in 2004, that the judge responsible for the application of sentences assesses reintegration potential and good behaviour on the basis of many criteria other than mere participation in work, such as behaviour during detention, involvement in socio-educational activities, the degree of compensation of the victims, the seriousness with which prisoners prepare their projects for after their release, the existence of family relations, etc. Moreover, there are a number of establishments in which the availability of work cannot fully satisfy the demand, which would amount to discrimination in relation to sentence reduction.

The Committee notes this information. It observes that, following the adoption of Act No. 2004-204 of 9 March 2004, section 720 became section 717‑3 and the provisions of section 721(1) were amended. Henceforth, each convict benefits from a sentence reduction credit calculated on the basis of the length of the sentence. This sentence reduction credit may be withdrawn by the judge responsible for the application of sentences in the event of bad conduct by the convict during detention. It would therefore appear that the link existing in the legislation between the acceptance of work and the right to sentence reduction has been removed. However, the Committee would be grateful if the Government would indicate whether, in practice, refusal of work may be taken into account in determining bad conduct by a prisoner.

(b) Conditions of work approximating those of a free labour relationship. The Committee recalls that, in accordance with section D102(2) of the Code of Criminal Procedure, the organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of work under free conditions. In this context, the Committee would be grateful if the Government would provide additional information on the following points relating to the remuneration of prison labour and the existence of an employment contract when work is performed for the benefit of private enterprises.

Remuneration

In its previous comments, the Committee emphasized that prisoners engaged in productive activities for the benefit of private enterprises (in the context of a labour hiring contract between the prison establishment and a private enterprise or in jointly managed establishments) and prisoners assigned to general service work in jointly managed establishments are not covered by the exception provided for in Article 2, paragraph 2(c), of the Convention, and should therefore receive gross remuneration approximating the levels of remuneration in the same activities performed outside prisons. The Committee notes the detailed information provided by the Government in its reports received in 2004 and 2006 concerning the adjustment of remuneration of prisoners engaged in general service work. According to this information, remuneration will be adjusted each year on the basis of changes in the minimum interoccupational growth wage (SMIC) and, between 2002-06, the average daily remuneration of prisoners assigned to general service work increased by around 20 per cent (20.3 per cent for category I, 18.5 per cent for category II and 19.2 per cent for category III). The Government adds that it remains appropriate to determine a minimum amount by category below which no remuneration could be paid.

With regard to general service work in jointly managed prison establishments, the Government indicates in its 2004 report that, since January 2002, the financing of the remuneration and social contributions of prisoners engaged in these activities is provided directly by the prison administration. The management of the budgetary credits allocated for general service work is undertaken in each establishment by the head of the administration. Similarly, the number of prisoners assigned to general service work and their distribution in the three remuneration categories, according to the scale established by the head of the prison administration, are determined by decision of the director of the establishment. The Committee notes from this information that the “general service” function is no longer delegated to a private operator in the context of a management contract. It requests the Government to indicate whether this is indeed the case and to continue providing information on any change which may occur in the distribution of functions in the context of contracts for the operation of jointly managed prison establishments, where such functions affect work by prisoners. In this connection, please provide a copy of a contract for the operation of jointly managed prison establishments. Furthermore, the Committee notes that the Act on the orientation and programming of justice (2003-07) envisages the construction of 13,200 places for prisoners, including 10,800 in new prisons with new forms of public-private partnership. The Committee requests the Government to provide information on the nature of the new prison establishments, with an indication of the role played by the private operator in the provision of work to prisoners.

With regard to the level of remuneration of prisoners performing productive activities in the context of a labour hiring contract or in jointly managed establishments, the Committee notes the information report prepared in 2002 by Senator Paul Loridant for the Commission on Finance, Budgetary Supervision and the Accounts of the Nation on the supervision of budgetary item No. 904-11 of the RIEP relating to its commercial activities. It notes that the average daily remuneration for productive activities is 24 euros when the work is provided by the RIEP, 19 euros when it is performed under labour hiring contracts and 16 euros in jointly managed prison establishments. According to this report, in jointly managed establishments, the operating contract contains a contractual indicator known as the SMAP (minimum wage for the prison administration) for the minimum hourly remuneration rate for prisoners for productive work. The SMAP varies between 41 and 44 per cent of the minimum hourly wage. The Committee notes that the increase of the SMAP to 50 per cent of the minimum wage is one of the measures proposed in the report.

The Committee notes, according to the Government’s last report, that the SMAP has been replaced by the minimum remuneration threshold (SMR). The Government indicates that the principle of remuneration which cannot be lower than the SMR, applicable in jointly managed establishments, has been extended to workshops under concession in publicly managed establishments. The SMR is a tool used by the administration to control the remuneration applied by private groups. However, it is not a right of prisoners who work and there is no guaranteed minimum remuneration. The Committee notes all this information. It observes that, in 2006, the SMR represents 44.7 per cent of the SMIC. Noting that, according to the 2002 Senate information report referred to above, the average wages paid to prisoners when they perform productive activities for the benefit of private entities (labour-hiring contracts and jointly managed establishments) are lower than those applied by the RIEP, the Committee requests the Government to continue providing detailed information on the average wages paid to prisoners engaged in productive activities (for the RIEP and for private entities). Please also indicate whether it is envisaged making the SMR binding.

Employment contract

The Committee notes that, under the terms of sections 717(3) and D103(2) of the Code of Criminal Procedure, the labour relations of prisoners are not covered by an employment contract. In its previous comments, the Committee hoped, in view of the positive information provided by the Government, that measures would be taken to offer prisoners working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration. The Government indicated in its 2004 report that the Plan for the Improvement of Labour and Employment Conditions (PACTE 2) set three objectives, including bringing prison labour closer to the generally applicable legislation. The prison administration is committed to a process of bringing the conditions under which prison work is performed as close as possible to the conditions found in the outside world. A circular has called on the establishments to make use of a “work engagement form”, which clarifies and formalizes the rules for the engagement of prisoners in productive work and general service work. It specifies matters relating to hiring, the duration of work, remuneration, trial periods, conditions relating to suspension and termination, requirements relating to regularity, etc. The Government adds that the work engagement form is an essential element in an approach aimed at the reintegration of prisoners as it prepares them for the performance of work and offers them protection and rights in exchange for a professional commitment.

The Committee also notes that the information report to the Senate, referred to above, emphasizes the need to introduce the rule of law and contracts into the prison work relationship. It raises the principle of the employment contract, while recognizing that the performance of work under detention presents specificities which require adjustments in relation to the general rules governing the employment contract. The report advocates offering employers the options of, firstly, an employment contract covered by general legal rules, concluded directly between the employer and the prisoner, with certain adjustments or, secondly, a specific public law prison labour contract, concluded by the prison administration and the prisoner, with the placing of the prisoner at the disposal of the actual employer being covered by a labour-hiring contract approximating an employment contract. The Committee also notes the opinion issued by the Economic and Social Council in February 2006 on “the conditions of the social and vocational reintegration of prisoners in France” and the report of the Court of Accounts “Detention and reintegration: The management of prisons”, published in 2006. These two authorities emphasize the need to establish a legal framework adapted to work by prisoners which specifies their rights and duties, as well as the rules applicable to their remuneration. According to the report of the Court of Accounts “the absence of a contract of employment between detainees and the enterprises which have recourse to their labour illustrates the ambiguous situation of prisoners, to which the development of the ‘work engagement forms’, advocated by the administration, only constitutes a partial response, as the latter have no legal value and are not used systematically”. The Committee hopes that the Government will be able to provide information in this next report on the progress achieved in this respect. It requests it to provide a more detailed information on the nature and use of work engagement forms.

2. Exploitation of the work of others. The Committee notes the information provided by the Government on the application of sections 225-13 and 225-14 of the Penal Code respecting the offence of obtaining the provision of unpaid services from a vulnerable or dependent person, and the offence of subjecting a vulnerable or dependent person to conditions of work or accommodation incompatible with human dignity. The Committee notes that Act No. 2003-239 of 18 March 2003 has extended the elements deemed to constitute these offences. Accordingly, it is henceforth sufficient for the vulnerability or state of dependence to be apparent or known to the person committing the offence. The Act also provides that minors or persons who are victims of such situations upon their arrival on the national territory shall be considered to be vulnerable or dependent persons which, according to the Government, makes it easier to categorize these offences when they are committed against foreign nationals. Furthermore, the penalties applicable for these offences have been increased. The Committee requests the Government to continue providing information, including statistics, on the application in practice of sections 225-13 and 225-14 of the Penal Code, and particularly to provide copies of any relevant court rulings. In this connection, the Committee notes with interest the interpretation by the Court of Cassation of the concept of human dignity.

3. Trafficking in persons. The Committee notes with interest that Act No. 2003-239 has inserted into the Penal Code a section on the trafficking of human beings (sections 225-4-1 to 225-4-8). These provisions define the trafficking of human beings and make those responsible liable to a sentence of imprisonment of seven years and a fine of 150,000 euros, which may be increased under certain circumstances. Persons committing this offence are also liable to the confiscation of all their assets (section 225-25). The Committee would be grateful if the Government would provide information on the effect given in practice to these new provisions of the Penal Code by providing copies of court decisions on this subject. It also requests the Government to provide information on the other measures that it has adopted to combat the trafficking of persons for sexual or labour exploitation. In particular, it would be grateful to be provided with information on the difficulties encountered by the public authorities in combating this phenomenon, the measures adopted to encourage victims to approach the authorities and to provide victims with protection.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that no report has been received from the Government. 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 following matters raised in its previous direct request.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. With reference to its observation on the application of the Convention in relation to prisoners working for private enterprises, the Committee draws the Government’s attention to the following points.

  1.  Absence of "menace of any penalty"

The Committee recalls that, since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. However, under the terms of section 720(1) of the Code of Criminal Procedure, work "is taken into account in assessing a convict’s reinsertion potential and good behaviour" and, under section 721(1), a reduction of sentence can be granted to prisoners detained under one or more sentences of imprisonment "where they have given sufficient proof of good conduct". A reduction in sentence may therefore depend on work activities. With reference to paragraph 21 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that it was made clear during the preparatory work for the Convention in relation to the terms "under the menace of any penalty" in the definition of forced labour provided in Article 2, paragraph 1, of the Convention, that the penalty in question need not take the form of penal sanctions, but might take the form also of a loss of rights or privileges. The fact that, under the terms of sections 720(1) and 721(1), a reduction of sentence may depend on work activities therefore calls into question the consent being freely given to work.

In this respect, the Committee notes with interest that the commission of inquiry on the conditions of detention in prison establishments in France (hereinafter "the commission of inquiry") refers in Part IV.D.1(d) of its report (page 104), to "the now automatic granting of reductions of sentence". However, the proposal made by the commission of inquiry in this respect goes in the opposite direction, namely that, "in order to encourage work by detainees, and the acquisition of experience, it would be desirable to take into account these activities in the now automatic granting of reductions of sentence". For the above reasons, this proposal undermines consent being freely given by the prisoner, and therefore compliance with the Convention, where work is performed in a workshop or prison under private management and thus does not come within the exception set out in Article 2, paragraph 2(c), for prison labour. The Committee therefore hopes that, rather than returning to the effective application of section 721(1) of the Code of Criminal Procedure, the new prison Bill that is currently being prepared will sever any link between the fact of accepting or not accepting work and prospects for a reduction of sentence, and that the Government will soon be in a position to report on provisions adopted to this end.

As to encouraging detainees to work, the Committee considers that the mandate given by section D.102(2) of the Code of Criminal Procedure (cited in point 2 below) offers potential which, judging from the report of the commission of inquiry, is far from being fully realized and which is in line with the Convention.

  2.  Conditions approximating those of a free labour relationship

With reference to points 10 and 11 of its general observation under the Convention and to paragraphs 132 et seq. of its General Report for the previous year, the Committee notes with interest that, under the terms of section D.102(2) of the Code of Criminal Procedure:

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

  (a)  Remuneration

In its report, the Government indicates that in 2000 the hourly (gross) rate of the minimum wage of the prison administration for work for hire, as set out in the contract of mixed management establishments, has been generalized to all establishments and amounts, depending on the nature of the establishments, to between 17.22 and 20 francs an hour. In this respect, the Committee also notes that, in the report of its visit to the Aix-Luynes detention centre, managed by a private contractor, namely the company GECEP, the commission of inquiry noted that in the hired workshops where detainees work for some 20 companies:

Work is remunerated at a piece-work rate, or based on a flat rate of 18 francs an hour as a minimum, which is therefore higher than the minimum wage for prisons of 17 francs an hour, a concept without legal basis put forward by the head of the private centre.

The Committee also notes that the hourly gross rate of the minimum growth wage, the statutory minimum wage ("SMIC"), which is not therefore imposed on hiring enterprises, was raised on 1 July 1999 from 40.22 francs to 40.72 francs. It also notes that the gross average remuneration of detainees working for hiring enterprises is lower than the average paid by the Industrial Board of Prison Establishments (RIEP), which is a state body.

However, the average remuneration is by far the lowest for the "general service work" intended to ensure the operation of the prison establishment, which in an establishment such as Luynes is administered by private enterprises, either as the principal manager, or as the co-contractors or the subcontractors of a co-contractor. The Committee notes with interest the proposal made by the commission of inquiry in Part IV.D.1(a) of its report to increase the remuneration of detainees employed on general service work. However, the minimum monthly amount indicated by way of illustration (1,000 francs, compared with 740 francs on average today) appears to be far from reflecting the principle set out in section D.102(2) of the Code of Criminal Procedure recalled above. The Committee also notes the Government’s indication in its report to the effect that:

For detainees engaged in general service work (the service allowing the operation of the establishment, such as catering and maintenance …), an adjustment of remuneration, covered by the operational budget of each establishment, was undertaken in the context of a new measure in 2001 and it is envisaged to continue this effort in 2002.

In the absence of any figures provided in this respect, the Committee recalls that, for the reasons set out in points 10 and 11 of its general observation under the Convention and in paragraphs 132 et seq. of its General Report the previous year, all detainees assigned to general service work who work for prison managers or other private enterprises, and who are not therefore covered by the exception set out in Article 2, paragraph 2(c), of the Convention, must receive gross remuneration approximating the levels of remuneration in occupational activities outside prisons, in the same way as detainees working for private contractors in workshops, which moreover would correspond to the principle set out in section D.102(2) of the Code of Criminal Procedure.

With regard to the level of wages of workers who are hired out, detainees, who are handicapped in their access to the labour market, may also be in competition with other persons in a situation of dependence. In this respect, during its visit to the Paris La Santé prison, the commission of inquiry noted that:

Recalling that the disabled in sheltered work centres (CAT) earned around 25 per cent of the minimum wage, the contractor met by the delegation considered that detainees were not being exploited.

In its proposals in Part IV.D.1(a) of its report, the commission of inquiry demonstrated resignation in this respect:

It would appear to be difficult to increase the remuneration of detainees employed by contractors. There would be a risk of the "disappearance" of contractors at a time when it is more than ever necessary to develop prison work. However, it would be desirable to provide detainees with wage slips.

In practice, the low level of gross remuneration (reduced still further by compensation for victims, legal expenses and alimony contributions) does not favour the development of prison work, as the commission of inquiry noted in Paris La Santé:

As a result the number of detainees who are candidates for work has been tending to fall for some years.

Over and above the important differences between the average remuneration for the different types of work available to detainees, the Committee notes from the report of the commission of inquiry extreme variations in remuneration, both between the various prison establishments and within the same establishment, not only between general service work and hired work, but also between the various contracting enterprises.

In one same establishment, gross monthly remuneration can vary between 400 and 1,400 francs for general service work and from 2,000 to nearly 10,000 francs for detainees employed by around ten contracting enterprises. In these conditions, the Committee hopes that, in accordance with section D.102(2) of the Code of Criminal Procedure, gross remuneration complying with the hourly rates of the statutory minimum wage will progressively be secured for all prisoners working for private contractors or prison managers, and that the Government will report on the measures taken to this end.

  (b)  Contracts of employment

The Committee recalls that under the terms of section 720(3) of the Code of Criminal Procedure:

The employment relations of detainees are not covered by an employment contract. An exception may be made to this rule for activities performed outside prison establishments.

Similarly, according to section D.103(2) of the Code:

The relations between the employer entity and the detainee are exempt from any employment contract: an exception is made to this rule for detainees admitted to the system of semi-freedom. This rule may also be set aside, in accordance with section 720, for detainees performing work outside prison establishments in the conditions set out in section 723(1).

In its last report, the Government indicates that the prison administration wishes to further define the employment relationship and that:

Two possibilities are now available: one, relating to the administration, in line with the objective of approximating prison work to normal law, consists of establishing an "employment document", setting out the obligations of the detainee and the prison administration and, in particular, the conditions for the conclusion and termination of the employment; the other, in prison law, consists of taking measures related to the principles of labour law, and particularly deciding on the desirability of establishing a specific employment contract, which should be based on labour law wherever there is no incompatibility with the obligations arising out of such law and those deriving from the situation of detention, or merely incorporating the necessary limits.

The Committee notes this information with interest. It therefore hopes that the new prison Bill will permit to offer all detainees working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration and operating in the manner of a temporary work agency. The Committee requests the Government to report on all provisions adopted to this end.

  (c)  Safety and health

The Committee notes with interest the Government’s statement in its report that the adaptation to the relevant rules of the machines used in the workshops administered by the prison employment service was completed in 2000. It hopes that the Government will soon be able to make the same statement for the machines used in the workshops and establishments administered by private enterprises, considered below.

Referring also to its observation in relation to the involvement of the labour inspectorate since 1999, the Committee notes with interest that the commission of inquiry observed, during its visit to the Le Mans prison, that the reports of labour inspectors "have changed things". However, the situation appears to be very uneven with regard to work premises. During its visit to the Melun detention centre:

The delegation noted that workshops, built in 1870, were operational, well lit and in accordance with safety standards, which is far from being the case in most of the prisons visited.

Similarly, in Part II.B.1(a) of its report, under the title "A generally unsatisfactory health situation", the commission of inquiry observed that:

There is in this respect a total contradiction between the "law" and practice. Indeed, the regulations of the Code of Criminal Procedure (section II, Chapter VIII, Title II) set out very precise rules concerning the volume of air, lighting, heating and ventilation of detention premises.

In its proposals contained in Part IV.D of its report the commission of inquiry links the promotion of work to safety and health:

The commission considers that prison work and training must be encouraged, even in detention centres. It is necessary for workshops to be located in premises that are ventilated, sufficiently large and which respect fire safety regulations, which requires space and improvements in old establishments.

Recalling the Government’s statement cited in its observation that the Prime Minister has committed the Government to a vast programme of renovation of prisons to achieve a substantial improvement in the conditions of detention of prisoners, the Committee hopes that the necessary measures will be taken to ensure that the normal safety and health conditions of free work are complied with in prison workplaces, and that the Government will soon be in a position to report on the results achieved in this respect.

  3.  Conclusion

The Committee notes with interest that, in the report of the commission of inquiry Mr. Guy Canivet, First President of the Court of Cassation, recalled in his hearing that:

-  the law applies in prison in the same way as elsewhere and prisons are not extraterritorial;

-  all detainees, while being detained, remain citizens.

The report of the commission of inquiry, entitled: "Prisons: A humiliation for the Republic", brought to the attention of the public grave contradictions between the law and practice, thereby encouraging a constructive rise in awareness. With regard to compliance with the international Convention, the Committee is bound to note that the development of national law and practice concerning prison work, while calling for additional developments as outlined in this request, is based on principles which give grounds for hoping that their full achievement will result in the required improvements.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters.

The Committee has noted the report of the Commission of Inquiry on conditions of detention in prison establishments in France, which was set up under a resolution adopted by the Senate on 10 February 2000.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. Prisoners working for private enterprises. The Committee recalls that, in accordance with section D.103(1) of the Code of Criminal Procedure, work in prison establishments is performed principally under one of the following three forms: general service work (intended to discharge the various types of work or tasks necessary for the operation of the prison establishment); the hiring of prison labour; and work for the Industrial Board of Prison Establishments (RIEP). Where labour is hired, prisoners work for a private enterprise in the event that the hiring enterprise is in the private sector, which is most frequently the case. Furthermore, in the few cases in which the prison establishment itself is administered by a private enterprise, detainees assigned to general tasks in the prison establishment are thereby in the service of a private enterprise.

Free consent and conditions of employment approximating a free labour relationship. With reference to its general observation under the Convention, the Committee recalls that since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. Under section D.99(1) of the Code of Criminal Procedure:

Detainees, irrespective of their penal category, may request that work be proposed to them.

Under the terms of section D.102(2):

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

According to section D.106(2):

Such remuneration shall be subject to employers’ and workers’ contributions under the terms established, for sickness, maternity and old-age insurance, by sections R.381-97 to R.381-109 of the Code of Social Security.

Prisoners thus benefit from social security in the same way as other workers. Reasonable deductions from remuneration are furthermore envisaged in sections D.112 and D.113 to share in the costs of maintenance, indemnify civil parties and for alimony payments.

According to section D.108:

Working time by day and by week, determined by the internal rules of the establishment, shall approximate the hours of work in the region or in the type of work concerned; in no case may they be higher. Observance of weekly rest and national holidays shall be ensured; working schedules shall foresee the time required for rest, meals, exercise and educational and leisure activities.

The Committee also notes with interest, further to its previous comments on this point, that under section D.109 of the Code of Criminal Procedure, as amended by Decree No. 98-1099 of 8 December 1998:

The safety and health measures provided for in Book II, Title III of the Labour Code and the decrees issues thereunder … shall be applicable to work performed by detainees within and outside prison establishments …

and the intervention of the labour inspection services is envisaged in this respect by section D.109-1 of the Code of Criminal Procedure, incorporated by the above Decree No. 98-1099, and regulated by a joint circular of the Ministries of Justice and of Employment and Solidarity of 16 July 1999, which was attached to the Government’s report.

Finally, under section D.110:

The right to compensation for employment accidents and occupational diseases shall be recognized for detainees performing work, in accordance with the special scheme established by Decree No. 49-1585 of 10 December 1949 (codified text, cf. sections D.412-36 to D.412-71 of the Code of Social Security) respecting the application to detainees of Act No. 46-2426 of 30 October 1946 on the prevention and compensation of employment accidents and occupational diseases.

What remains to be done. It appears from the above provisions that the guiding principles of French legislation governing prison work respond on a number of essential points, and in an exemplary fashion, to the criteria set forth by the Committee so that work performed by a prisoner for a private enterprise can be assimilated to a free labour relationship and not come under the prohibitions set out in Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. However, in certain respects, already noted in the Committee’s previous comments, the legislative provisions governing prison work still require amendments to this effect: firstly, with regard to the elimination of "the menace of any penalty", within the meaning of Article 2, paragraph 1, of the Convention, in the event of refusal to work; and secondly, amendments are necessary to ensure that the relationship between a prisoner working for a private enterprise and her or his employer is always covered by an employment contract, and not only in the case of certain categories of detainees. Furthermore, with reference also to its previous comments concerning remuneration for work and safety and health conditions, the Committee notes that the report of the Commission of Inquiry on the conditions of detention in prison establishments in France found a number of serious deficiencies in practice, some of which have a bearing on the observance of conditions under which the work of a prisoner can be assimilated to a free labour relationship. In all these respects, the Committee notes with interest the Government’s statement in its report that the Prime Minister committed the Government in November 2000 to two series of measures: a vast programme for the renovation of prisons with a view to a substantial improvement in the conditions of detention of prisoners, and the formulation of major legislation on the discharge of sentences. The Committee hopes that account will be taken in this exercise of the points mentioned above, which it develops in greater detail 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 very near future.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. With reference to its observation on the application of the Convention in relation to prisoners working for private enterprises, the Committee draws the Government’s attention to the following points.

1.  Absence of "menace of any penalty"

The Committee recalls that, since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. However, under the terms of section 720(1) of the Code of Criminal Procedure, work "is taken into account in assessing a convict’s reinsertion potential and good behaviour" and, under section 721(1), a reduction of sentence can be granted to prisoners detained under one or more sentences of imprisonment "where they have given sufficient proof of good conduct". A reduction in sentence may therefore depend on work activities. With reference to paragraph 21 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that it was made clear during the preparatory work for the Convention in relation to the terms "under the menace of any penalty" in the definition of forced labour provided in Article 2, paragraph 1, of the Convention, that the penalty in question need not take the form of penal sanctions, but might take the form also of a loss of rights or privileges. The fact that, under the terms of sections 720(1) and 721(1), a reduction of sentence may depend on work activities therefore calls into question the consent being freely given to work.

In this respect, the Committee notes with interest that the commission of inquiry on the conditions of detention in prison establishments in France (hereinafter "the commission of inquiry") refers in Part IV.D.1(d) of its report (page 104), to "the now automatic granting of reductions of sentence". However, the proposal made by the commission of inquiry in this respect goes in the opposite direction, namely that, "in order to encourage work by detainees, and the acquisition of experience, it would be desirable to take into account these activities in the now automatic granting of reductions of sentence". For the above reasons, this proposal undermines consent being freely given by the prisoner, and therefore compliance with the Convention, where work is performed in a workshop or prison under private management and thus does not come within the exception set out in Article 2, paragraph 2(c), for prison labour. The Committee therefore hopes that, rather than returning to the effective application of section 721(1) of the Code of Criminal Procedure, the new prison Bill that is currently being prepared will sever any link between the fact of accepting or not accepting work and prospects for a reduction of sentence, and that the Government will soon be in a position to report on provisions adopted to this end.

As to encouraging detainees to work, the Committee considers that the mandate given by section D.102(2) of the Code of Criminal Procedure (cited in point 2 below) offers potential which, judging from the report of the commission of inquiry, is far from being fully realized and which is in line with the Convention.

2.  Conditions approximating those of a free labour relationship

With reference to points 10 and 11 of its general observation under the Convention and to paragraphs 132 et seq. of its General Report for the previous year, the Committee notes with interest that, under the terms of section D.102(2) of the Code of Criminal Procedure:

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

  (a)  Remuneration

In its report, the Government indicates that in 2000 the hourly (gross) rate of the minimum wage of the prison administration for work for hire, as set out in the contract of mixed management establishments, has been generalized to all establishments and amounts, depending on the nature of the establishments, to between 17.22 and 20 francs an hour. In this respect, the Committee also notes that, in the report of its visit to the Aix Luynes detention centre, managed by a private contractor, namely the company GECEP, the commission of inquiry noted that in the hired workshops where detainees work for some 20 companies:

Work is remunerated at a piece work rate, or based on a flat rate of 18 francs an hour as a minimum, which is therefore higher than the minimum wage for prisons of 17 francs an hour, a concept without legal basis put forward by the head of the private centre.

The Committee also notes that the hourly gross rate of the minimum growth wage, the statutory minimum wage ("SMIC"), which is not therefore imposed on hiring enterprises, was raised on 1 July 1999 from 40.22 francs to 40.72 francs. It also notes that the gross average remuneration of detainees working for hiring enterprises is lower than the average paid by the Industrial Board of Prison Establishments (RIEP), which is a state body.

However, the average remuneration is by far the lowest for the "general service work" intended to ensure the operation of the prison establishment, which in an establishment such as Luynes is administered by private enterprises, either as the principal manager, or as the co contractors or the subcontractors of a co contractor. The Committee notes with interest the proposal made by the commission of inquiry in Part IV.D.1(a) of its report to increase the remuneration of detainees employed on general service work. However, the minimum monthly amount indicated by way of illustration (1,000 francs, compared with 740 francs on average today) appears to be far from reflecting the principle set out in section D.102(2) of the Code of Criminal Procedure recalled above. The Committee also notes the Government’s indication in its report to the effect that:

For detainees engaged in general service work (the service allowing the operation of the establishment, such as catering and maintenance …), an adjustment of remuneration, covered by the operational budget of each establishment, was undertaken in the context of a new measure in 2001 and it is envisaged to continue this effort in 2002.

In the absence of any figures provided in this respect, the Committee recalls that, for the reasons set out in points 10 and 11 of its general observation under the Convention and in paragraphs 132 et seq. of its General Report the previous year, all detainees assigned to general service work who work for prison managers or other private enterprises, and who are not therefore covered by the exception set out in Article 2, paragraph 2(c), of the Convention, must receive gross remuneration approximating the levels of remuneration in occupational activities outside prisons, in the same way as detainees working for private contractors in workshops, which moreover would correspond to the principle set out in section D.102(2) of the Code of Criminal Procedure.

With regard to the level of wages of workers who are hired out, detainees, who are handicapped in their access to the labour market, may also be in competition with other persons in a situation of dependence. In this respect, during its visit to the Paris La Santé prison, the commission of inquiry noted that:

Recalling that the disabled in sheltered work centres (CAT) earned around 25 per cent of the minimum wage, the contractor met by the delegation considered that detainees were not being exploited.

In its proposals in Part IV.D.1(a) of its report, the commission of inquiry demonstrated resignation in this respect:

It would appear to be difficult to increase the remuneration of detainees employed by contractors. There would be a risk of the "disappearance" of contractors at a time when it is more than ever necessary to develop prison work. However, it would be desirable to provide detainees with wage slips.

In practice, the low level of gross remuneration (reduced still further by compensation for victims, legal expenses and alimony contributions) does not favour the development of prison work, as the commission of inquiry noted in Paris La Santé:

As a result the number of detainees who are candidates for work has been tending to fall for some years.

Over and above the important differences between the average remuneration for the different types of work available to detainees, the Committee notes from the report of the commission of inquiry extreme variations in remuneration, both between the various prison establishments and within the same establishment, not only between general service work and hired work, but also between the various contracting enterprises.

In one same establishment, gross monthly remuneration can vary between 400 and 1,400 francs for general service work and from 2,000 to nearly 10,000 francs for detainees employed by around ten contracting enterprises. In these conditions, the Committee hopes that, in accordance with section D.102(2) of the Code of Criminal Procedure, gross remuneration complying with the hourly rates of the statutory minimum wage will progressively be secured for all prisoners working for private contractors or prison managers, and that the Government will report on the measures taken to this end.

  (b)  Contracts of employment

The Committee recalls that under the terms of section 720(3) of the Code of Criminal Procedure:

The employment relations of detainees are not covered by an employment contract. An exception may be made to this rule for activities performed outside prison establishments.

Similarly, according to section D.103(2) of the Code:

The relations between the employer entity and the detainee are exempt from any employment contract: an exception is made to this rule for detainees admitted to the system of semi-freedom. This rule may also be set aside, in accordance with section 720, for detainees performing work outside prison establishments in the conditions set out in section 723(1).

In its last report, the Government indicates that the prison administration wishes to further define the employment relationship and that:

Two possibilities are now available: one, relating to the administration, in line with the objective of approximating prison work to normal law, consists of establishing an "employment document", setting out the obligations of the detainee and the prison administration and, in particular, the conditions for the conclusion and termination of the employment; the other, in prison law, consists of taking measures related to the principles of labour law, and particularly deciding on the desirability of establishing a specific employment contract, which should be based on labour law wherever there is no incompatibility with the obligations arising out of such law and those deriving from the situation of detention, or merely incorporating the necessary limits.

The Committee notes this information with interest. It therefore hopes that the new prison Bill will permit to offer all detainees working for a private enterprise an employment contract with the employer entity, whether it is the enterprise for which the work is performed or an entity under the prison administration and operating in the manner of a temporary work agency. The Committee requests the Government to report on all provisions adopted to this end.

  (c)  Safety and health

The Committee notes with interest the Government’s statement in its report that the adaptation to the relevant rules of the machines used in the workshops administered by the prison employment service was completed in 2000. It hopes that the Government will soon be able to make the same statement for the machines used in the workshops and establishments administered by private enterprises, considered below.

Referring also to its observation in relation to the involvement of the labour inspectorate since 1999, the Committee notes with interest that the commission of inquiry observed, during its visit to the Le Mans prison, that the reports of labour inspectors "have changed things". However, the situation appears to be very uneven with regard to work premises. During its visit to the Melun detention centre:

The delegation noted that workshops, built in 1870, were operational, well lit and in accordance with safety standards, which is far from being the case in most of the prisons visited.

Similarly, in Part II.B.1(a) of its report, under the title "A generally unsatisfactory health situation", the commission of inquiry observed that:

There is in this respect a total contradiction between the "law" and practice. Indeed, the regulations of the Code of Criminal Procedure (section II, Chapter VIII, Title II) set out very precise rules concerning the volume of air, lighting, heating and ventilation of detention premises.

In its proposals contained in Part IV.D of its report the commission of inquiry links the promotion of work to safety and health:

The commission considers that prison work and training must be encouraged, even in detention centres. It is necessary for workshops to be located in premises that are ventilated, sufficiently large and which respect fire safety regulations, which requires space and improvements in old establishments.

Recalling the Government’s statement cited in its observation that the Prime Minister has committed the Government to a vast programme of renovation of prisons to achieve a substantial improvement in the conditions of detention of prisoners, the Committee hopes that the necessary measures will be taken to ensure that the normal safety and health conditions of free work are complied with in prison workplaces, and that the Government will soon be in a position to report on the results achieved in this respect.

3.  Conclusion

The Committee notes with interest that, in the report of the commission of inquiry Mr. Guy Canivet, First President of the Court of Cassation, recalled in his hearing that:

-  the law applies in prison in the same way as elsewhere and prisons are not extraterritorial;

-  all detainees, while being detained, remain citizens.

The report of the commission of inquiry, entitled: "Prisons: A humiliation for the Republic", brought to the attention of the public grave contradictions between the law and practice, thereby encouraging a constructive rise in awareness. With regard to compliance with the international Convention, the Committee is bound to note that the development of national law and practice concerning prison work, while calling for additional developments as outlined in this request, is based on principles which give grounds for hoping that their full achievement will result in the required improvements.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s reply to its previous observations. It also notes the report of the Commission of Inquiry on conditions of detention in prison establishments in France, which was set up under a resolution adopted by the Senate on 10 February 2000.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. Prisoners working for private enterprises. The Committee recalls that, in accordance with section D.103(1) of the Code of Criminal Procedure, work in prison establishments is performed principally under one of the following three forms: general service work (intended to discharge the various types of work or tasks necessary for the operation of the prison establishment); the hiring of prison labour; and work for the Industrial Board of Prison Establishments (RIEP). Where labour is hired, prisoners work for a private enterprise in the event that the hiring enterprise is in the private sector, which is most frequently the case. Furthermore, in the few cases in which the prison establishment itself is administered by a private enterprise, detainees assigned to general tasks in the prison establishment are thereby in the service of a private enterprise.

Free consent and conditions of employment approximating a free labour relationship. With reference to its general observation under the Convention, the Committee recalls that since the adoption of the Act of 22 June 1987, convicted persons are no longer in principle compelled to work. Under section D.99(1) of the Code of Criminal Procedure:

Detainees, irrespective of their penal category, may request that work be proposed to them.

Under the terms of section D.102(2):

The organization, methods and remuneration of work shall be as close as possible to those of external occupational activities with a view, inter alia, to preparing detainees for the normal conditions of free work.

According to section D.106(2):

Such remuneration shall be subject to employers’ and workers’ contributions under the terms established, for sickness, maternity and old-age insurance, by sections R.381-97 to R.318-109 of the Code of Social Security.

Prisoners thus benefit from social security in the same way as other workers. Reasonable deductions from remuneration are furthermore envisaged in sections D.112 and D.113 to share in the costs of maintenance, indemnify civil parties and for alimony payments.

According to section D.108:

Working time by day and by week, determined by the internal rules of the establishment, shall approximate the hours of work in the region or in the type of work concerned; in no case may they be higher. Observance of weekly rest and national holidays shall be ensured; working schedules shall foresee the time required for rest, meals, exercise and educational and leisure activities.

The Committee also notes with interest, further to its previous comments on this point, that under section D.109 of the Code of Criminal Procedure, as amended by Decree No. 98 1099 of 8 December 1998:

The safety and health measures provided for in Book II, Title III of the Labour Code and the decrees issues thereunder … shall be applicable to work performed by detainees within and outside prison establishments …

and the intervention of the labour inspection services is envisaged in this respect by section D.109 1 of the Code of Criminal Procedure, incorporated by the above Decree No. 98 1099, and regulated by a joint circular of the Ministries of Justice and of Employment and Solidarity of 16 July 1999, which was attached to the Government’s report.

Finally, under section D.110:

The right to compensation for employment accidents and occupational diseases shall be recognized for detainees performing work, in accordance with the special scheme established by Decree No. 49 1585 of 10 December 1949 (codified text, cf. sections D.412 36 to D.412 71 of the Code of Social Security) respecting the application to detainees of Act No. 46 2426 of 30 October 1946 on the prevention and compensation of employment accidents and occupational diseases.

What remains to be done. It appears from the above provisions that the guiding principles of French legislation governing prison work respond on a number of essential points, and in an exemplary fashion, to the criteria set forth by the Committee so that work performed by a prisoner for a private enterprise can be assimilated to a free labour relationship and not come under the prohibitions set out in Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. However, in certain respects, already noted in the Committee’s previous comments, the legislative provisions governing prison work still require amendments to this effect: firstly, with regard to the elimination of "the menace of any penalty", within the meaning of Article 2, paragraph 1, of the Convention, in the event of refusal to work; and secondly, amendments are necessary to ensure that the relationship between a prisoner working for a private enterprise and her or his employer is always covered by an employment contract, and not only in the case of certain categories of detainees. Furthermore, with reference also to its previous comments concerning remuneration for work and safety and health conditions, the Committee notes that the report of the Commission of Inquiry on the conditions of detention in prison establishments in France found a number of serious deficiencies in practice, some of which have a bearing on the observance of conditions under which the work of a prisoner can be assimilated to a free labour relationship. In all these respects, the Committee notes with interest the Government’s statement in its report that the Prime Minister committed the Government in November 2000 to two series of measures: a vast programme for the renovation of prisons with a view to a substantial improvement in the conditions of detention of prisoners, and the formulation of major legislation on the discharge of sentences. The Committee hopes that account will be taken in this exercise of the points mentioned above, which it develops in greater detail in a request addressed directly to the Government.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following points:

The Committee has noted the detailed information contained in the Government’s reports in response to the Committee’s earlier comments, as well as the observations submitted by the French Democratic Confederation of Labour (CFDT) in October 1996 and September 1998.

  Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention.  1.  In its earlier comments, the Committee raised a certain number of points relative to prison labour and, in particular, the question of consent freely given by the prisoner, the employment contract, and the wages and conditions of work of prisoners in the event that they are made available to private enterprises. The Committee requested the Government to adopt the necessary measures both in law and in practice to ensure that the employment conditions of these prisoners allow their situation to be assimilated to that of free workers.

2.  The CFDT in its communication reiterated its request for a contract to be concluded between the prison administration and prisoners, defining the obligations of the parties. The CFDT also considered that the supervision of prison labour should be entrusted to a labour inspection service, since legislation relating to health and safety at work should be applied in prisons under the same conditions as elsewhere.

3.  The Committee has taken due note of the Government’s statement that a Bill establishing a labour inspection service has been drawn up, and a circular defining the methods of work of the prison labour inspection services with regard to health and safety at work and vocational training has also been drafted. The Committee hopes that the Government will provide copies of the final texts as soon as they have been adopted.

4.  The Committee has also noted that, following an agreement concluded between the prison authorities and the local medical service, medical examinations will shortly be introduced, during a trial period, for prisoners who are working. The Government indicated that a legal and social text with respect to prison labour is being drawn up and that the themes covered (remuneration, social protection, health and safety at work) will provide responses to the questions that are being raised in this regard. The Committee trusts that the Government will provide full information in its next report.

5.  Finally, the Committee has noted with interest the Government’s statement that the average daily wage paid to prisoners has been increased although disparities remain among different types of prison labour. The Committee requests the Government to continue to take measures to ensure that wages and employment conditions of prisoners who are made available to private enterprises conform to relevant standards and to provide information in respect of the measures adopted or envisaged in this regard.

6.  The Committee recalls that the Convention clearly excludes the use of prison labour for the benefit of private enterprises; however, where the necessary safeguards exist to ensure that prisoners accept work voluntarily and prison labour is carried out under the supervision and control of the public authorities, the Committee refers to paragraph 97 of the General Survey of 1979 on the abolition of forced labour and paragraphs 116 to 125 of the General Report of 1998: the Committee considers that an employment contract could, particularly in prisons, resolve this problem by ensuring that the necessary safeguards are provided. However, the Committee hopes that the Government will provide in its next report all the necessary information to enable a general assessment of the situation in respect of these provisions of the Convention.

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

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the detailed information contained in the Government's last reports in response to the Committee's previous comments as well as the new observations submitted by the French Democratic Confederation of Labour (CFDT) in October 1996 and September 1998.

Article 1, paragraph 1, and Article 2, paragraphs 1 and 2(c), of the Convention. 1. In its previous comments, the Committee raised a certain number of points relative to prison labour and, in particular, the question of consent freely given by the prisoner, the employment contract, and the wages and conditions of work of prisoners in the event that they are made available to private enterprises. The Committee requested the Government to adopt the necessary measures both in law and in practice to ensure that the employment conditions of these prisoners allow their situation to be assimilated to that of free workers.

2. The CFDT in its recent communication reiterates its request for a contract to be concluded between the prison administration and prisoners, defining the obligations of the parties. The CFDT also considers that the supervision of prison labour should be entrusted to a labour inspection service, since legislation relating to health and safety at work should be applied in prisons under the same conditions as elsewhere.

3. The Committee takes due note of the Government's statement that a Bill establishing a labour inspection service has been drawn up, and a circular defining the methods of work of the prison labour inspection services with regard to health and safety at work and vocational training has also been drafted. The Committee hopes that the Government will provide copies of the final texts as soon as they have been adopted.

4. The Committee also notes that, following an agreement concluded between the prison authorities and the local medical service, medical examinations will shortly be introduced, during a trial period, for prisoners who are working. The Government indicates that a legal and social text with respect to prison labour is being drawn up and that the themes covered (remuneration, social protection, health and safety at work) will provide responses to the questions that are being raised in this regard. The Committee trusts that the Government will provide full information in its next report.

5. Finally, the Committee notes with interest the Government's statement that the average daily wage paid to prisoners has been increased although disparities remain among different types of prison labour. The Committee requests the Government to continue to take measures to ensure that wages and employment conditions of prisoners who are made available to private enterprises conform to relevant standards and to provide information in respect of the measures adopted or envisaged in this regard.

6. The Committee recalls that the Convention clearly excludes the use of prison labour for the benefit of private enterprises; however, where the necessary safeguards exist to ensure that prisoners accept work voluntarily and prison labour is carried out under the supervision and control of the public authorities, the Committee refers to paragraph 97 of the General Survey of 1979 on the abolition of forced labour and paragraphs 116 to 125 of the General Report of 1998: the Committee considers that an employment contract could, particularly in prisons, resolve this problem by ensuring that the necessary safeguards are provided. However, the Committee hopes that the Government will provide in its next report all the necessary information to enable a general assessment of the situation in respect of these provisions of the Convention.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

In its previous direct request the Committee referred to the creation of a national service of solidarity and requested that the Government provide information on the status of this Bill before Parliament.

The Committee notes that the Government's report did not address this question and hopes that the next report will contain the information requested.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report for the period from 1 January to 31 December 1994 and the observations on this matter sent to the Government by the French Democratic Confederation of Labour (CFDT), of which a copy was sent to the ILO under cover of a letter of 26 June 1995.

Article 2, paragraphs 1 and 2(c), of the Convention. In its report, the Government, referring to the definition of forced or compulsory labour given in Article 2, paragraph 1 of the Convention and the conditions laid down in Article 2, paragraph 2(c) for the exception concerning compulsory prison labour, recalls that prison labour satisfies the obligations of the Convention provided that it corresponds to one of the following two situations: either it is not exacted under the menace of any penalty from a person who has not offered himself voluntarily for that work; or, while being compulsory as a consequence of the conviction, it does not involve being hired to private persons. The Government considers that the legislative principles and regulatory provisions applicable to prison labour carried out in French prisons make it correspond fully to the first of these two situations.

In its previous observation, the Committee raised a number of questions concerning consent freely given by the prisoner, accompanied by the guarantees that labour law links to an employment contract, especially in regard to wages and social welfare, and it inquired more closely about the legal set-up of prisons the construction and management of which has been put into the hands of private enterprises, and on the conditions under which the prisoner is subjected to this "private operator".

Prisoner consent. In its previous observation, the Committee noted that the law of 22 June 1987 amending section 720 of the Code of Criminal Procedure made prison labour voluntary; however, according to the same law, both work and professional training are factors in assessing a convict's good behaviour and reinsertion potential. The Committee noted that under section 721 of the Code of Criminal Procedure, a reduction of sentence can be granted to prisoners for good behaviour. This assessment, which is to be made by the judge charged with following up the implementation of sentences, as provided under Article D.253 of the Code of Criminal Procedure, is based on the prisoner's overall behaviour, but also on his assiduousness at work. The Committee requested that the Government indicate the measures taken to ensure that the prisoner's consent cannot be vitiated by the fact that a favourable assessment implies assiduousness at work. In private prisons there are two inter-related forms of constraint: first, the private enterprise operating a prison includes prison labour in its profit calculations and, second, the private enterprise is not only a user of prison labour, but also exercises, in law or in practice, an important part of the authority which belongs to the prison administration.

In its latest report, the Government considers that the fact that occupational activity may be taken into account under the first paragraph of section L720 in assessing a convict's good behaviour and reinsertion potential can in no way constitute the "menace of any penalty" envisaged in the Convention. On the one hand, in fact, this assessment which may lead to a reduction in the sentence, is not of a kind to be assimilated to a threat of extending the sentence which has been passed on the convict. On the other hand, this assessment applies to good behaviour and reinsertion potential as a whole (section 721 and 721-1 of the Code of Criminal Procedure) shown by a convict and, in particular, success in general or occupational training examinations, conditions of participating in socio-educational, cultural or sports activities, and general behaviour in detention as recorded in the comments made by prison staff, in the opinion of the judge charged with following up the implementation of sentences. The fact that a convict does not wish to pursue an occupational activity, or cannot pursue it, or does not show assiduousness deemed sufficient in this activity, is therefore without effect on the length of his sentence in so far as his participation in the various activities offered to detainees and his behaviour in detention are evidence in themselves of his social integration.

The Committee takes due note of these indications. It notes that section 720 of the Code of Criminal Procedure does not provide that employment activities "may be" taken into account but that they "are" taken into account in assessing a convict's good behaviour and reinsertion potential. In regard to the "menace of any penalty" mentioned in Article 2, paragraph 1, of the Convention, and the difference, from this point of view, between the menace of extending the detention and that of depriving of release normally granted for good behaviour, the Committee recalls that, as it pointed out in paragraph 21 of its General Survey of 1979 on the abolition of forced or compulsory labour, it was specified during examination of the draft Convention by the Conference that the penalty envisaged in Article 2, paragraph 1, need not be in the form of a penal sanction but might take the form also of a loss of rights or privileges.

The menace in question in this case not only governs the initial acceptance of prison work but also accompanies the worker throughout his detention. As the CFDT noted in its observations, section D250 of the Code of Criminal Procedure provides that withdrawal of work is a penalty imposed for a disciplinary offence committed during or on the occasion of the work. This withdrawal has two consequences for the detainee: loss of his income; and a more unfavourable assessment of his reinsertion potential, and hence a consequence for the duration of his sentence. The CFDT considers that the absence of reference to clear contractual provisions, along with the difficulties of contesting internal sanctions handed down by the prison administration make detainees particularly vulnerable, and sometimes forced to accept an employment relationship which is not in accordance with those in the free world; according to the administration's will, the detainee may carry out his work in acceptable conditions or servile conditions.

Employment contract. In its previous observation, the Committee noted that under section 270, paragraph 3, of the Code of Criminal Procedure, the employment relationships of incarcerated persons are not covered by employment contracts. Section D.103 of the aforementioned Code excludes employment contracts in the relations between the prison administration and the detainee, for whom the administration obtains work, and between the concessionaire and the prisoner, who is placed at its disposal as provided in an administrative agreement setting, in particular, the wages and working conditions. The prisoner at work then becomes a worker deprived of a contract and labour law protection. Considering that in the case of private prisons the prison administration is, in law or in practice, in the hands of the enterprise using prison labour, the Committee requested that the Government examine the terms of sections 720, paragraph 3, and D.103 of the Code of Criminal Procedure and take necessary measures so that labour relations and conditions of employment of prisoners are governed by labour law and subject to labour inspection.

In its latest report, the Government, having recalled in some detail that the exercise of an occupational activity assumes a request for employment from the detainee and the agreement of the prison, indicates that the nature of the relationship existing between the detainee and the prison, characterized by the strength of the constraint stemming from the judicial decision, which sets aside the existence of a free and voluntary agreement between the two partners, does not permit the principle of establishing an employment contract between them to prevail. It is for this reason that section D.103 of the Code of Criminal Procedure specifies that these labour relationships do not include any employment contract and that amendment of this text is not envisaged.

The Committee takes due note of these indications; it also notes the CFDT comment that it is this same analysis which, for the Confederation, justifies the requirement of a contractual guarantee in regard to work by detainees.

In regard to the relationship between the prisoner and the private enterprise which uses and directs his work, the Government indicates that in the mixed management "Programme 13000" prisons, the private group has the same competence in organization of work as that of a prison work concessionary enterprise in a publicly managed prison and is subject to the same obligations. The labour relationship between the detainee and the enterprise using the labour or responsible for the work function do not give rise to an employment contract, as the enterprise is deprived of a large proportion of the rights and obligations incumbent on the employer, particularly in terms of recruitment and dismissal, "assignment" and "deassignment" being carried out by public officials.

The Committee observes that the relationship is a triangular one comparable to that existing between a temporary employment agency, the enterprise using labour and the temporary worker with, however, under current national legislation and practice, two differences which have a direct bearing on the observance of the Convention: the temporary worker has an employment contract and the protection of labour law, which is not the case for prison labour; furthermore, prison labour is captive labour in the full sense of the term, namely, in contrast to a temporary worker it has no access in law and in practice to employment other than under the conditions set unilaterally by the prison administration.

The Committee recalls that hiring out prison labour or placing it at the disposal of private enterprises is specifically covered by Article 2, paragraph 2(c), of the Convention, and that only work carried out in conditions of a free employment relationship, accompanied by corresponding guarantees, can be held not to come under the requirements of Article 2, paragraph 2(c).

In the absence of an employment contract and outside the scope of the labour law, it seems difficult or even impossible, particularly in the prison context, to reconstitute the conditions of a free working relationship, as the situation also reveals in respect of remuneration, social security, safety and health, and labour inspection.

Remuneration and conditions of employment. In previous comments, the Committee noted that the Government was aware of the inadequate level of remuneration of prisoners employed by private enterprises, whose "minimum prison wage" was set at 50-60 per cent of the hourly SMIC (minimum growth wage) depending on the prison regime, and that there were difficulties linked to low inmate productivity and to the low level of skills of the prison population. It requested the Government to re-examine the level of remuneration in the different regimes, and to indicate any measures taken or envisaged so that the provisions on the minimum growth wage (SMIC) are applied to prisoners working for private firms.

The Committee notes with interest the detailed information supplied by the Government. It notes that in the workshops of the national labour service in prisons, the average daily income in 1994 was 23 per cent higher than in the concessionary regime. Noting also the detailed comments of the CFDT concerning hourly wages, the right to compensation for industrial accidents and occupational diseases, hygiene and safety, and the role of the labour inspectorate, it requests the Government to communicate its observations concerning the various points raised by the CFDT.

The Committee hopes that the necessary measures will be taken both in law and in practice to ensure that prisoners made available to private enterprises have employment conditions allowing their situation to be assimilated to that of free workers. It requests the Government to supply detailed information on any measures taken to distinguish the situation of these workers in or regarding their employment from their situation in prison, particularly in regard to labour discipline and the assessment of reinsertion potential and good behaviour; to enable them to benefit from an employment contract and full application of labour law; and to improve their wages and working conditions.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

Article 2, paragraph 2(c), of the Convention. In its previous observation, the Committee referred to the conditions under which prison labour for private enterprises could be considered as a free work relationship and thus avoid the prohibition of Article 2, paragraph 2(c), of the Convention. The Committee has taken note of section 720 of the Code of Criminal Procedure, as amended in 1987, according to which penitentiaries will take all necessary measures to provide work for inmates who so desire. It was also noted that employment relationships for prisoners (other than prisoners on semi-release), are not covered by an employment contract (section 720, paragraph 3). The Committee also referred to the level of remuneration paid to prisoners under concessionary agreements and in prison industries.

The Committee notes the comments of the French Democratic Confederation of Labour (CFDT) on the application of Convention No. 105 presented by the Government in December 1994. According to the CFDT, the attribution and withdrawal of prisoners' work assignments depends primarily on the attitude of the prison authorities and not particularly according to the wishes of the prisoners. The CFDT alleges that prison labour, which is no longer compulsory, cannot become a privilege granted and sometimes withdrawn from prisoners as a punishment, and that this presupposes a specific procedure for attributing work assignments and the setting of contractual labour relations according to clear and serious bases. The CFDT further adds that a contractual document should state the terms of employment and remuneration, and that withdrawal of the authorization should be subject to procedural safeguards, including notice to the prisoner, and that only when such conditions are met can one speak of free consent to work.

In its last report, the Government indicates that prisoners are not required to work but may do so if they wish, while restating that prisoners are always paid for their work, and that their remuneration is always set with reference to the legal minimum wage for free labour (SMIC), and that in this framework remuneration takes into account the productivity of a prisoner in comparison with a free labourer performing the same work. The Government further notes that wages are subject to both employer and employee social contributions (withholding) and that prisoners have old-age, sickness, maternity, accident and widow/widower insurance. It is further noted that work in workshops must comply with health and safety regulations for free workers.

The Committee recalled in its previous observation that only work performed under free employment relations, i.e. with the prisoner's consent accompanied by guarantees concerning wages and social welfare, is not within the scope of the text of the Convention.

Prisoner consent. The Committee observes that the law of 22 June 1987 amending section 720 of the Code of Criminal Procedure made prison labour voluntary; however, according to the same law, both work and professional training are factors in assessing a convict's good behaviour and reinsertion potential. The Committee notes that under section 721 of the Code of Criminal Procedure, a reduction of sentence can be granted to prisoners for good behaviour. This assessment, which is to be made by the judge charged with following up the implementation of sentences, as provided under article D.253 of the Code of Criminal Procedure, is based on the prisoner's overall behaviour, but also on his assiduousness at work. The Committee requests that the Government indicate the measures taken to ensure that the prisoner's consent cannot be vitiated by the fact that a favourable assessment implies assiduousness at work. In private prisons there are two interrelated forms of constraint: first, the private enterprise operating the prison includes prison labour in its profit calculations and, second, the private enterprise is not only a user of prison labour, but also retains, both in law and in practice, a large part of the authority which belongs to the prison administration.

Employment contract. The Committee observes that under section 720, paragraph 3, of the Code of Criminal Procedure, the employment relationships of incarcerated persons are not covered by employment contracts. Section D.103 of the aforementioned Code excludes employment contracts in the relations between the prison administration and the detainee, for whom the administration obtains work, and between the concessionary enterprise and the prisoner, who is placed at its disposal as provided in an administrative agreement setting, in particular, the wages and working conditions. The prisoner at work is then a worker deprived of a contract and labour protection. Considering that in the case of private prisons the prison administration is, in law or in practice, in the hands of the enterprise using prison labour, the Committee requests that the Government examine the terms of sections 720, paragraph 3, and D.103 of the Code of Criminal Procedure and take necessary measures so that labour relations and conditions of employmet of prisoners are governed by labour law and subject to labour inspection.

Remuneration. With regard to remuneration, in its previous observation the Committee requested that the Government provide detailed information on changes in the remuneration of prisoners employed by private enterprises, whose "minimum prison wage" was set at 50-60 per cent of the normal minimum hourly wage, according to the regime. The Committee had also noted that the Government was aware of the inadequate level of remuneration, the difficulties of low inmate productivity and the low level of skills of the prison population.

The Committee requests that the Government re-examine the level of remuneration according to different regimes, and to indicate all measures taken or envisaged so that the national minimum wage (SMIC) applies to prisoners working for private firms.

Free employment relationship in private prisons. The Committee has noted that, by agreement, the construction and management of prisons had been put into the hands of private enterprises in the context of "Programme 13,000" (recourse to private capital to build and manage prisons). The Committee notes that "work" is part of the responsibilities given to private management in these prisons. The Committee requests that the Government provide information as to legal regulations applicable to private prisons and on the conditions under which the prisoner is subjected to this "private operator". Such information will help to determine whether, as concerns employment, a relationship similar to that of a free worker can be established.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes that no report has been received from the Government. 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 following matters raised in its previous direct request:

The Committee notes that the Council of Ministers decided at its meeting of 24 February 1993 that a national solidarity service would be established, which would be in addition to the five types of service, other than military service, which already exist (cooperation, technical assistance, police, civil security and conscientious objection).

The Committee refers to Article 2, paragraph 2(a), of the Convention and to the explanations in paragraphs 24 to 33 of its General Survey of 1979 on forced or compulsory labour, and hopes and again expresses the hope that the Government will take account of the provisions of the Convention in the drafting of any legislation regarding the above matter and will provide a copy of any Bills submitted to Parliament.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following point:

Article 2, paragraph 2(c), of the Convention. In its previous comments, the Committee referred to section 720 of the Code of Criminal Procedure, as amended in 1987, under which all necessary arrangements are made in prison establishments to ensure that prisoners who so wish may engage in occupational activity. The Committee also noted that the employment relationships of prisoners are not covered by employment contracts (section 720, paragraph 3), except in the case of prisoners on semi-release, but that the work is generally remunerated. Referring more particularly to the work performed by prisoners for enterprises using prison labour, the Committee none the less noted that the average hourly rate of remuneration was less than half the minimum wage (SMIC) and that substantial deductions were made. The Committee asked the Government to indicate the measures taken or under consideration to ensure that the remuneration paid by hiring enterprises is of a comparable level to that paid to free workers and to state who is responsible for the payment of the employers' share of social contributions in the case of hired workers. 1. The Committee noted the detailed information supplied by the Government in its report for the period ending 30 June 1991, particularly concerning the different categories of activity (general service, Prisons' Industrial Board (RIEP), concession, vocational training and other), the distribution of jobs, developments in the methods and objectives of prison labour and the total wages of each category. With regard to the remuneration paid to prisoners, the Government stated that the principle whereby the remuneration of detainees was negotiated at the same level as that of free workers still applied, but that there were still difficulties arising from the quality of work performed in detention, the low skill levels of prison detainees and their lack of vocational training, and the organization of prison labour which precluded achievement of productivity level comparable to that of outside enterprises (short working days, frequent interruptions). The Government also indicated that owing to the economic situation outside prison, immediate alignment with wages paid outside would be unrealistic. The Committee noted however the Government's indications that the prison administration was aware of the overall inadequacy of the level of individual remuneration and is endeavouring to produce a policy to improve it. Since most work is paid at piece-rates, in negotiations with enterprises using prison labour the average productivity in the sector concerned outside the prison was used as the basis for calculation. Thus, a prisoner who attained the outside level of productivity would be paid at least the minimum wage, with upwards or downwards adjustment for any differential. The Government added that, for all prisoners, the employer's share of social contributions was paid by the employer and that for prisoners exercising an activity outside the establishment, ordinary labour law applied (work contract, automatic alignment with working conditions outside, including in respect of remuneration). 2. The Committee also noted the Government's indications concerning the construction of new prison accommodation for 13,000 inmates. It was managed partly by private enterprises, which are responsible for the "labour function". Minimum rates of remuneration had been fixed and these establishments had a "minimum prison wage" which was adjusted annually in keeping with the SMIC (60 per cent of the hourly SMIC rate). The Government pointed out that the methods of organizing prison labour had been reviewed and now included the keeping of files on the activities to be performed, jobs to be filled and the level of remuneration. It added that the prison working day was organized with a view to obtaining better returns on the investments (two five-hour shifts so that machines can be used for ten hours instead of the six hours under the former system); this should also enable the prisoners concerned to have access to other activities in the establishment (e.g. sports, education, social and cultural activities). The Committee recalls again that Article 2, paragraph 2(c), of the Convention expressly prohibits persons from whom work is exacted as a consequence of a conviction in a court of law from being placed at the disposal of private individuals, companies or associations. Only work carried out in conditions of a free employment relationship can be held not to be incompatible with this prohibition; this requires not only the formal consent of the prisoner, but also, in the light of the circumstances of this consent, guarantees and safeguards in respect of wages and social security that are such to justify the labour relationship being regarded as a free one. The Committee asks the Government to provide detailed information on any developments and progress in this respect.

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

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that the Council of Ministers decided at its meeting of 24 February 1993 that a national solidarity service would be established, which would be in addition to the five types of service, other than military service, which already exist (cooperation, technical assistance, police, civil security and conscientious objection).

The Committee refers to Article 2, paragraph 2(a), of the Convention and to the explanations in paragraphs 24 to 33 of its General Survey of 1979 on forced or compulsory labour, and hopes that the Government will take account of the provisions of the Convention in the drafting of any legislation regarding the above matter and will provide a copy of any Bills submitted to Parliament.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 2, paragraph 2(c), of the Convention. In its previous comments, the Committee referred to section 720 of the Code of Criminal Procedure, as amended in 1987, under which all necessary arrangements are made in prison establishments to ensure that prisoners who so wish may engage in occupational activity. The Committee also noted that the employment relationships of prisoners are not covered by employment contracts (section 720, paragraph 3), except in the case of prisoners on semi-release, but that the work is generally remunerated. Referring more particularly to the work performed by prisoners for enterprises using prison labour, the Committee none the less noted that the average hourly rate of remuneration was less than half the minimum wage (SMIC) and that substantial deductions were made. The Committee asked the Government to indicate the measures taken or under consideration to ensure that the remuneration paid by hiring enterprises is of a comparable level to that paid to free workers and to state who is responsible for the payment of the employers' share of social contributions in the case of hired workers.

1. The Committee notes the detailed information supplied by the Government in its report, particularly concerning the different categories of activity (general service, Prisons' Industrial Board (RIEP), concession, vocational training and other), the distribution of jobs, developments in the methods and objectives of prison labour and the total wages of each category.

With regard to the remuneration paid to prisoners, the Government states that the principle whereby the remuneration of detainees is negotiated at the same level as that of free workers still applies, but that there are still difficulties arising from the quality of work performed in detention, the low skill levels of prison detainees and their lack of vocational training, and the organization of prison labour which precludes achievement of productivity level comparable to that of outside enterprises (short working days, frequent interruptions). The Government also indicates that owing to the economic situation outside prison, immediate alignment with wages paid outside would be unrealistic.

The Committee notes however the Government's indications that the prison administration is aware of the overall inadequacy of the level of individual remuneration and is endeavouring to produce a policy to improve it. Since most work is paid at piece-rates, in negotiations with enterprises using prison labour the average productivity in the sector concerned outside the prison is used as the basis for calculation. Thus, a prisoner who attains the outside level of productivity will be paid at least the minimum wage, with upwards or downwards adjustment for any differential.

The Government adds that, for all prisoners, the employer's share of social contributions is paid by the employer and that for prisoners exercising an activity outside the establishment, ordinary labour law applies (work contract, automatic alignment with working conditions outside, including in respect of remuneration).

2. The Committee also notes the Government's indications concerning the construction of new prison accommodation for 13,000 inmates. It is managed partly by private enterprises, which are responsible for the "labour function". Minimum rates of remuneration have been fixed and these establishments have a "minimum prison wage" which is adjusted annually in keeping with the SMIC (60 per cent of the hourly SMIC rate). The Government points out that the methods of organizing prison labour have been reviewed and now include the keeping of files on the activities to be performed, jobs to be filled and the level of remuneration. It adds that the prison working day is organized with a view to obtaining better returns on the investments (two five-hour shifts so that machines can be used for ten hours instead of the six hours under the former system); this should also enable the prisoners concerned to have access to other activities in the establishment (e.g. sports, education, social and cultural activities).

The Committee recalls that Article 2, paragraph 2(c), of the Convention expressly prohibits persons from whom work is exacted as a consequence of a conviction in a court of law from being placed at the disposal of private individuals, companies or associations. The only work which can be considered as an exception to this prohibition is work carried out under the conditions of a free employment relationship; this requires not only the formal consent of the prisoner, but also in the light of the circumstances of this consent, guarantees and safeguards in respect of wages and social security that are such to justify the labour relationship being regarded as a free one.

The Committee asks the Government to provide detailed information on any developments and progress in this respect.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous direct request concerning the application of Act No. 87-512 of 10 July 1987 respecting national service in the police force, the Committee requests the Government to indicate whether the assignment of young persons who may be incorporated in the national police force, the technical assistance service and the co-operation service, in place of military service, is carried out at the request of those concerned.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

1. Article 2, paragraph 2(c), of the Convention. In previous comments, the Committee noted the general clauses and conditions of employment of detainees within and outside prison establishments contained in the hiring contracts and circulars of the Ministry of Justice of 14 January 1986, and it requested the Government to supply information on the effect given in practice to the provisions of section 720 of the Code of Criminal Procedure and of hiring contracts, particularly regarding the following points: the proportion of detainees who wished to work and who were made available to hiring enterprises; the remuneration actually paid in relation to that of free workers and the deductions made in relation to the level of productivity, and the special conditions and deductions referred to in hiring contracts; the unemployment insurance covering detainees working outside or inside prison.

The Committee notes the information supplied by the Government concerning detainees who exercise an occupational activity or who receive training. It notes in particular that the activities of detainees working for the Prisons Industrial Board (RIEP) is organised and carried out within the framework of the prison administration and that productive activities are carried out by the above administration for other administrative departments and for private enterprises. As regards the activity of detainees who work for hiring enterprises, the prison administration makes available to the enterprises the premises on which the work is organised and the detainees are employed. Their remuneration is in theory negotiated at the same level as that of free workers, although the application of this principle encounters difficulties stemming, in particular, from the low skill levels of prison detainees and the productivity levels, which are lower than in external enterprises. According to the information supplied by the Government, the average daily remuneration for six hours of work was, in September 1989, FF75 for hired workers and FF90 in the RIEP. This remuneration is subject to deductions to cover social contributions in the fields of sickness, old-age and widows' insurance (both the worker's and the employer's contributions) and accident insurance, as well as deductions pertaining to the detainee's imprisonment (maintenance, the earnings that are retained and paid to prisoners upon their release, compensation for victims). The Government indicates that the prison administration is aware of the overall insufficiency of the level of remuneration and is endeavouring to pursue a policy of attracting enterprises that offer better paid work.

The Committee notes that under section 720(3) of the Code of Criminal Procedure the employment relationships of detainees are not covered by employment contracts. The Committee also notes that the average hourly rate of remuneration was FF12.50 in September 1989, while the minimum wage (SMIC), which is the gross hourly wage rate under which no employee may be paid, was FF29.91. The deductions that were made amounted to around 80 per cent of the remuneration.

The Committee refers to paragraphs 97 to 101 of its 1979 General Survey on the Abolition of Forced Labour in which it indicated that the employment of prisoners by private employers is only compatible with the Convention under the conditions of a free employment relationship, that is not only entered into with the consent of the person concerned but is also subject to certain guarantees as to the payment of normal wages and social security, etc.

The Committee notes that, according to the documentation supplied by the Government in its report, 400 private enterprises have employed 8,500 workers and attained a payroll of FF115 million, and it requests the Government to indicate the measures that have been taken or are envisaged to ensure that the remuneration paid by hiring enterprises is of a comparable level to that paid to free workers, not only in overall terms, but also as regards individual wages. It also requests the Government to state whether, for hired workers, the employers' share of social contributions is paid by the detainee.

As regards entitlement to unemployment benefits, the Committee notes the information supplied by the Government to the effect that, under the general unemployment benefit scheme set up by Ordinance No. 84-198 of 21 March 1984, freed detainees benefit from public assistance in the form of the integration allowance that is awarded for a period of one year, and have access to training programmes intended for the long-term unemployed by virtue of a circular dated 15 February 1988.