Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 29) sur le travail forcé, 1930 - Tunisie (Ratification: 1962)

Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. Freedom of State employees to terminate their employment. For many years, the Committee has noted that it is not clear from the relevant legal provisions, or from the information provided by the Government on their practical application, whether State employees (civilian and military) may resign within reasonable time limits (section 77 of Act No. 83-112 of 12 December 1983 issuing the general conditions of service of employees of the State, local communities and public administrative institutions; section 45 of Act No. 67-29 of 14 July 1967 concerning the organization of the judiciary; and section 27 of Act No. 67-20 of 31 May 1967 issuing the general conditions of service of members of the armed forces). The Committee noted that appeal procedures are open to officials affected by a tacit or explicit decision refusing their request for resignation (Prime Minister’s Circular No. 3 of 31 January 1984 regarding the procedure for applying the provisions of the general conditions of service of employees of the State, local communities and public administrative institutions). The Committee therefore requested the Government to provide information on the manner in which the appeals procedure was conducted and its length, both with respect to the joint administrative committees or administrative tribunals, in order to ensure that officials might leave their posts within reasonable time limits without having to abandon their posts and suffer the consequent repercussions.

The Committee notes that, in its report received on 30 August 2007, the Government indicates that the administrative court competent to rule on the legality of administrative decisions, when considering an appeal lodged by officials, tried to reconcile the interests of officials who wanted to leave their post as soon as possible with those of the public service requiring continuity. The Government indicates that the courts are bound to hand down their decision within a reasonable time period, which time varies depending on the evidence and documents included in the files. It is therefore not possible to impose a specific and standard time on them to make a ruling. The Committee takes note of this information and hopes that the Government will provide, in its next reports, information on the number of appeals on grounds of exceeding authority lodged by officials to the administrative courts against tacit or explicit decisions refusing their request for resignation. The Government is asked to provide, by way of example, a copy of some of these decisions.

As regards requests for resignation by military personnel, the Government indicates that the granting of these requests is not subject to any condition. Military personnel are able to leave their posts and, in the majority of cases, the time limit does not exceed 30 days from the time they submit their request. The Ministry of National Defence only retains a member of the military personnel wishing to resign in a state of emergency or in the event of collective resignations. The Government also points out that an examination of administrative disputes reveals that there have been no rulings on the grounds of exceeding authority in the case of resignations of military personnel. The Committee takes note of this information and requests the Government to provide information, in its future reports, on any changes that might occur in the way the military authorities handle requests for resignation from military personnel.

Article 2, paragraph 2(a). Purely military character of work carried out in the context of compulsory military service. For many years, the Committee has drawn the Government’s attention to the need to amend the legislation relating to compulsory national service under which, contrary to this provision of the Convention, conscripts may be called upon to do work which is not purely of a military character. In its last direct request, the Committee noted that, despite its previous comments, the new legislation adopted in 2004 (Act No. 2004-1 of 14 January) was still based on a concept of military service that was too broad to be covered by the exception to forced labour provided under Article 2, paragraph 2(a), of the Convention. According to this legislation, any citizen of 20 years of age must carry out national service of one year’s duration, of which the aim is to prepare the citizen to defend his country and to participate in the global development of the country, as well as to contribute to the dissemination of peace in the world. National service may take the form of active military service of the needs of the national army or of national service outside the armed forces’ units intended to meet the needs of global defence and the imperatives of national solidarity. In the second case, the conscripts are assigned either to armed security forces’ units or to administrations and enterprises, as individual assignments or within the framework of technical cooperation.

The Committee requested the Government to provide information on the way in which, in practice, the conscripts are assigned to one or other form of national service. It notes the adoption of Decree No. 2004-516 of 9 March 2004 establishing procedures for conscripts to carry out national service outside units of the armed forces. It observes that under section 3 of this Decree, conscripts wishing to carry out national service outside units of the armed forces may submit a request to the Ministry of National Defence. The Minister of National Defence then takes a decision on the matter, after ensuring that the needs of the national army have been met. The conscripts appointed to carry out their national service in the form of individual assignments in administrations and enterprises pay a monthly contribution to the national service fund, which can vary between 30 and 50 per cent of their wage. If the conscript fails to pay this financial contribution, he may be transferred to one of the units of the armed forces.

As it has already pointed out, the Committee considers that the concept of compulsory national service implies that some of the conscripts likely to be called up under the law are used for work not of a purely military character. While acknowledging that the law seems to grant conscripts the possibility of opting for work of a non-military nature in the context of national service, the fact remains that the choice between a purely military service and work of a civil nature is within the context – and on the basis – of compulsory national service under the law. Notwithstanding this choice, persons are under the legal obligation to do national service for one year, without necessarily carrying out work linked to the need to guarantee national defence – the aim of which is at the basis of the exception provided under Article 2, paragraph 2(a), of the Convention. In these circumstances, the Committee requests the Government to re-examine the issue as a whole. Meanwhile, in order to evaluate whether the assignment of conscripts outside military units is tantamount to a privilege granted at their request and does not, on the contrary, constitute a means of contributing to the country’s economic development, the Committee requests the Government to provide information on the number of persons who carry out their national service each year both within and outside the units of the armed forces, stipulating whether these are individual assignments or within the framework of technical cooperation. The Government is also asked to specify, for the same reference year, the number of persons who submitted a request to the Minister of National Defence to carry out national service outside the armed forces’ units. Finally, given that the Ministry of National Defence decides each year on the number of conscripts likely to be appointed outside the armed forces’ units, the Committee asks the Government to indicate whether conscripts may be assigned outside these units without having previously made a request in this respect.

Article 2, paragraph 2(c). Sentence of community work. In its previous comments, the Committee requested the Government to specify the manner in which a penalty of community work, provided under sections 15bis, 15ter and 17 of the Penal Code, applies in practice, and to indicate the type of association in which community work might be carried out. It notes the information provided on this matter by the Government, especially concerning the judge’s prerogatives in enforcing penalties in this area – as the latter determines the establishment in which the sentence will be carried out and is responsible for following up on its enforcement. Noting that section 17 of the Penal Code lists the establishments in which the penalty of community work may be carried out, which include charitable or aid associations, associations of benefit to the nation or environmental protection associations, the Committee requests the Government to provide the list of associations authorized to receive persons sentenced to the penalty of community work and to give examples of such work carried out in these aforementioned associations. The Committee requires this information to ensure that the work carried out is indeed in the general interest and that it is performed for non-profit-making associations.