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

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Bosnie-Herzégovine (Ratification: 1993)

The Committee notes the Government’s first report and the legislation attached thereto.

Article 1 of the Convention. Basic human rights of all migrant workers. The Committee notes that article 2 of the Constitution of Bosnia and Herzegovina recognizes human rights and fundamental freedoms in respect of “all persons within the territory”. Similarly, the Constitution of the Federation of BiH confers human rights and fundamental freedoms on “all persons within the territory of the Federation”. The Committee further notes that the Constitution of the Republika Srpska, in article 44, acknowledges that “aliens shall have the human rights and freedoms determined by the Constitution and other rights specified by law and international agreements”. While it appears that migrant workers enjoy human rights and fundamental freedoms on an equal footing with national workers, the Committee notes that it is not clear whether fundamental rights and freedoms are recognized in favour of both regular and irregular migrant workers. The Committee also notes that in practice refugees and displaced persons face serious discrimination. Recalling the Government’s obligation to recognize the basic human rights of all migrant workers, including irregular migrant workers, trafficked persons, refugees and displaced persons in so far as they are workers employed outside their home country, the Committee requests the Government to indicate how it is ensured in practice that all migrant workers enjoy basic human rights.

Articles 2 and 3. Detection, prevention and elimination of migration in abusive conditions. The Committee notes that in 2001, the Action Plan for Prevention of Human Trafficking was adopted with the objective of combating illegal immigration and human trafficking. The Committee notes from the Action Plan that Bosnia and Herzegovina has become in the past years a country of destination of hundreds of young women, mainly from the Republic of Moldova, Romania, Ukraine and the Russian Federation, who are trafficked for sexual exploitation. A component relating to the prevention of the trafficking of women was inserted in the Gender Action Plan of 2007. The Committee notes the Government’s indication that the labour inspection services are charged with the identification of the presence in the territory of illegally employed migrant workers, while the security authorities and the state border services are responsible for monitoring the entry, transit and exit of migrant workers. The Committee further notes that under the Action Plan for Prevention of Human Trafficking, specific training to fight illegal immigration and human trafficking should be provided by the Academic of the State Border Service to all its members. The Committee requests the Government to provide the following:

(i)    full information on the measures taken under the Action Plan for Prevention of Human Trafficking: (a) to suppress clandestine movements of migrants for employment and illegal employment of migrants; and (b) against the organizers of illicit or clandestine movements of migrants for employment and against those who employ workers who have immigrated in illegal conditions, and on their impact. Please also supply information on the measures taken under the Gender Action Plan to combat trafficking of women and on their impact on preventing and eliminating this phenomenon;

(ii)   information on the specific training and other awareness-raising measures directed at the bodies charged with monitoring migration flows with a view to enabling them to detect migration in abusive conditions and illegal employment of migrant workers;

(iii) statistical data and other information on the situation of illegal immigration in the country collected by the Ministry of Security; and

(iv)  measures taken to seek the cooperation of employers’ and workers’ organizations in identifying migration in abusive conditions and illegal employment of migrant workers.

Article 4. Systematic contact and exchange of information. The Committee notes from the Government’s report under the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, that in 2006 Bosnia and Herzegovina entered into approximately 20 bilateral agreements on international cooperation of police and immigration services with a view to combating illegal immigration. It also took steps to sign 35 further agreements (CMW/C/BIH/1, paragraph 54). From the same sources, it emerges that a project to develop a communication system and exchange information on illegal migration in the West Balkans was implemented (ibid, paragraph 65). Moreover, the Committee notes that Bosnia and Herzegovina participates in international projects, such as “Ilareia” and “Hera”, aimed at strengthening police cooperation to address and combat trafficking in persons. The Committee further notes the Government’s indication that the exchange of information among countries is ensured through the network created by the World Association of the Employment Services. The Committee encourages the Government to continue its efforts to establish systematic contact and exchange of information with other states and requests it to provide information on the impact of the abovementioned, as well as any other initiatives taken in this regard.

Article 5. Prosecution of the authors of labour trafficking. The Committee notes the Government’s indication that the authors of forced labour trade are subject to criminal proceedings in accordance with the law of the country. The Committee requests the Government to specify whether the authors of labour trafficking can be prosecuted whatever the country from which they exercise their activities, and whether any arrangements on the national or international level have been made in this regard. Please indicate relevant legislative provisions, including on the sanctions to be imposed.

Article 6. Administrative, civil and penal sanctions. The Committee notes that section 12 of the Law on employment of foreign citizens and persons without the citizenship in Republika Srpska provides for penalties against the employer who hires a migrant worker without a work permit. Similarly, section 12 of the Law on employment of foreign citizens in the Brčko District and section 17 of the Law on employment of foreigners in the Federation of BiH provide for sanctions against the employer hiring migrant workers in breach of the law. The Committee also notes that the Action Plan for Prevention of Human Trafficking envisages the introduction of some amendments to the Law on Immigration and Asylum in Bosnia and Herzegovina so that it will provide for penalty provisions (ECRI, CRI (2005) 2, 25 June 2004, paragraph 49). The Committee requests the Government to provide complete information on the nature of the administrative, civil and penal sanctions applicable to persons illegally employing migrant workers, organizing the movements of migrants for employment in abusive conditions or knowingly providing assistance to such movements, whether for profit or otherwise, including a copy of the relevant legislative provisions. Please also provide information on the application of the sanctions contemplated in the abovementioned laws regulating the employment of foreigners and on the status of the amendments to the Law on Immigration and Asylum in Bosnia and Herzegovina with respect to penalties.

Article 7. Consultations with social partners. The Committee notes from the Government’s report that no special consultations with social partners have been carried out. Recalling that workers’ and employers’ organizations shall be consulted in regard to the issues covered by the Convention, the Committee requests the Government to take the necessary measures to involve the social partners in the initiatives designed to detect, eliminate and prevent migration in abusive conditions and illegal employment of migrant workers.

Article 8. Non-return in the case of loss of employment. The Committee notes the Government’s indication that migrant workers legally residing in the country will not lose their residence or work permits, should this event occur, and will enjoy the same rights as national workers in respect of security of employment, the provision of alternative employment, relief work and retraining. The Committee also notes that in 2000 the Federation of BiH adopted the decision imposing the Law on Job Placement and Social Security of the Unemployed containing, in section 2, a non-discrimination clause. The Committee requests the Government to indicate the legislative provisions relevant to the application of Article 8 and specify whether these apply to both temporary and permanent migrant workers. The Committee also requests the Government to indicate whether the abovementioned decision also applies to migrant workers.

With regard to the Law on employment of foreigners in the Federation of BiH, the Committee notes that section 13 provides for the withdrawal of the work permit in the event that the migrant worker commits a crime, infringes on public order as well as “other cases provided by law”. The Committee requests the Government to clarify the meaning of “other cases provided by the law”.

Article 9. Equality of treatment in respect of rights arising out of past employment. The Committee notes from the Government’s report that illegally employed migrant workers can have the rights arising out of their past employment recognized solely on condition that specific agreements on social security have been signed between Bosnia and Herzegovina and their country of immigration. In this respect, the Committee refers the Government to paragraph 432 of the General Survey of 1999 on migrant workers spelling out that the principle of reciprocity does not apply in this context. The Committee further notes the Government’s statement that in case of dispute concerning their rights, migrant workers can have access to the competent bodies on an equal footing with national workers. As to the expenses related to the expulsion of the worker and his or her family, the Committee notes the Government’s indication that these costs are borne by the State. The Committee requests the Government to provide further information, including reference to relevant legislation, on the measures taken to ensure that irregular migrant workers enjoy equality of treatment with regularly admitted and lawfully employed migrants in the country in respect of the rights arising out of past employment, as regards remuneration, social security and other benefits. The Committee further requests the Government to provide information on any cases concerning breaches of equality of treatment brought before courts of law and the final decisions handed down, and to indicate whether migrant workers contesting the expulsion are permitted to remain in the country for the duration of the case. Please also indicate the provisions stipulating that the costs related to the expulsion of migrant workers and their family are to be borne by the State.

Articles 10 and 12. Promotion of equality of opportunity and treatment. The Committee notes the Government’s indication that there exists no specific policy designed to pursue this objective, but that the national legal framework guarantees that regular migrant workers enjoy equal opportunities and treatment with nationals. The Committee emphasizes that the existence of legislation prohibiting discrimination and providing reparations against infringements, is not sufficient to ensure equality of opportunity and treatment in practise. An active policy to secure acceptance and observance of this principle and to assist migrant workers and their families to make use of the equal opportunities offered to them is also needed. The Committee requests the Government to take the necessary steps to formulate and implement a policy on equality of opportunity and treatment in cooperation with workers’ and employers’ organizations. Please also provide information on any judicial or administrative decisions concerning cases of discrimination in respect of the abovementioned rights brought before the competent bodies by migrant workers on the basis of the relevant national legislation.

Article 11. Frontier workers. Noting that the legislation does not contain any definition of frontier workers, the Committee requests the Government to specify the meaning of “frontier worker” and to indicate which categories of migrant workers are not considered covered by the Convention.

Article 13. Family reunification. Noting the Government’s indication that no measures have been adopted to facilitate family reunification either on the national or international levels, the Committee encourages the Government to take such measures.

Article 14. Restriction of migrant workers’ employment. The Committee notes the Government’s indication that no restrictions apply to the free choice of employment of migrant workers, nor do any restrictions apply to their geographical mobility. It notes, however, that pursuant to sections 5 and 6 of the Law on employment of foreign citizens and persons without the citizenship in Republika Srpska, the work permit is issued to the employer and cannot be transferred to another employer. The Committee also notes the Government’s indication that migrant workers’ access to certain categories of jobs in the state institutions and in the administrative departments is restricted. The Committee further notes that the issue of recognition of occupational qualifications acquired outside the country is regulated through bilateral agreements and is subject to local provisions. Recalling that the maximum period allowed by the Convention for the application of restrictions on foreigners’ employment is two years, the Committee requests the Government to provide practical information on the application of sections 5 and 6 of the Law on employment of foreign citizens and persons without the citizenship in Republika Srpska. The Committee also requests the Government to indicate the categories of employment or functions in the state institutions and administrative departments to which access is restricted for migrant workers. Please also provide information on the bilateral agreements regulating the issue of recognition of occupational qualifications acquired outside the country and on the measures taken to consult with the social partners during their negotiation.

Part III of the report form. The Committee notes from the Government’s report that the Ministry of Security of Bosnia and Herzegovina, the ministries in charge of employment at the level of the entities and the department of Brčko district, as well as the Ministries of Interior of the Entities, the police of Brčko district and the employment and labour inspectorate services are all responsible for the application of the legislation and regulations relevant to the implementation of the Convention. The Committee requests the Government to provide information on the monitoring activities, especially those carried out by the labour inspectorate services relating to the application of the Convention, including details on their findings, and on any other initiatives taken by the abovementioned bodies with a view to promoting the application of the Convention.

Part IV. The Committee notes that no information concerning any decisions delivered by national courts is available. The Committee encourages the Government to gather and submit information on any relevant decisions involving issues relating to the application of the Convention handed down by national courts or other competent administrative bodies.

Part V. The Committee notes the Government’s statement that in practice there are difficulties in implementing the Convention, owing to the sharing of competences and responsibilities relating to the regulation of migration between the various horizontal and vertical levels of government. The Committee requests the Government to specify the nature of these difficulties and to provide information on the measures taken or envisaged to address them. It also encourages the Government to take the necessary steps to coordinate the regulation of migration and ensure that it is uniformly and coherently applied throughout the country. Noting that a similar attempt is envisaged under the Action Plan of Prevention of Human Trafficking, the Committee requests the Government to provide information on the progress achieved in this context.