Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 29) sur le travail forcé, 1930 - Pologne (Ratification: 1958)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Pologne (Ratification: 2017)

The Committee notes the observations of the Independent and Self Governing Trade Union (“Solidarnosc”) received on 29 August 2016 as well as the Government’s reports.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. In its previous comments, the Committee requested the Government to pursue its efforts to prevent and combat trafficking in persons through measures to strengthen the capacity of law enforcement and the labour inspectorate. It also requested the Government to continue to provide information on measures taken to provide victims of trafficking with appropriate protection and services. The Committee also requested the Government to provide information on the application in practice of section 189a of the Penal Code including on the investigations and the convictions.

Prevention. The Committee takes note of the Government’s indication in its report that there has been no change in the legal framework and that human trafficking prevention has remained within the competence of the police and Prosecutor’s Office. The Committee notes that at the central level, the representatives of the Chief Labour Inspectorate participate in meetings of the Inter-Ministerial Task Force of Human Trafficking Prevention and Counteraction. This Task Force was established to ensure monitoring of actions and exchange of information between relevant stakeholders engaged as well as to suggest and assess actions aimed at effective prevention of human trafficking. Moreover, the Task Force collaborates with administrative government bodies and units and assesses the implementation of the National Action Plan 2013–15 against Human Trafficking. The Committee also notes the Government’s indication that the National Labour Inspectorate implements components of the National Action Plan and verifies employment legality and the hired foreign labour force in order to establish whether the work can be characterized as forced labour. Also, it uses different indicators such as the work performance circumstances to identify victims of human trafficking. The Committee notes that, following an agreement in 2015 between the Chief Border Guard Commander and the Chief Labour Inspector, the powers of the labour inspectorate have been reinforced as has the cooperation between border guards and labour inspectors. The Committee takes note of the on-job trainings offered by the training centre of the National Labour Inspection and the training on human rights issues in particular on forced labour.

Protection. The Committee notes the observations of “Solidarnosc” stating that although victims can bring a civil action against the perpetrators of crimes related to human trafficking, very few victims of this practice ever receive compensation from the perpetrators. The Committee notes that in the report submitted by the Polish authorities on measures taken to comply with the Committee of the Parties Recommendation CP(2013)7 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, the Government mentions that from 2013, the National Consulting and Intervention Centre for Victims of Trafficking (KCIK) provides two shelters dedicated to female victims of trafficking instead of one and medical assistance to the victims who are beneficiaries of KCIK. Moreover, the Committee notes in this report that the Act of 12 December 2013 on foreigners, has implemented important changes in terms of granting a reflection period and residence permits for foreign victims of trafficking. The Committee notes that, in April 2015, a law which reinforces and consolidates the framework of protection and assistance of victims of crime and witnesses including trafficking victims, came into force.

Application of penalties in practice. With regard to the application in practice of section 189a of the Penal Code which deals with human trafficking, the Committee notes the Government’s indication that in 2013 there were 12 persons convicted, with 12 sentenced to suspensions of liberty; in 2014, there were nine persons convicted, with nine sentenced to deprivation of liberty and five fines; and in 2015, there were 23 convicted under section 189a, with 24 sentenced to deprivation of liberty and ten fines.

The Committee notes with interest the numerous measures taken by the Government to strengthen its law enforcement bodies and labour inspectorate to combat trafficking in persons for labour exploitation. The Committee encourages the Government to pursue its efforts in strengthening coordination between the actors involved in combating trafficking in persons, in order to improve identification of and better protection for victims of trafficking. The Committee also encourages the Government to ensure that the objectives set out in the National Action Plan against Human Trafficking are achieved. The Committee requests the Government to continue to provide information on the action of the labour inspectorate to combat trafficking in persons as well as on the protection and services provided to the victims.

2. Legislative framework for forced labour practices. The Committee requested the Government to provide further information on the application of sections 189 and 191 and Chapter XXVIII of the Penal Code in practice, such as the number of cases related specifically to forced labour practices and of convictions.

The Committee notes the observations of the “Solidarnosc” stating that, in the current legislation, forced labour or compulsory labour does not appear at all, and there is only a definition of human trafficking. “Solidarnosc” raises concerns regarding the legal existence of forced labour linked to human trafficking whereas forced labour does not necessarily have to be the result of trafficking. “Solidarnosc” also raises its doubts regarding the available data, which makes it difficult to estimate the number of people who are victims of forced labour and human trafficking.

The Committee notes the Government’s indication that while the Criminal Code does not contain any regulation providing directly for the punishment of exacting forced or compulsory labour, the definition of forced and compulsory labour comprises features of other criminal offences that are defined in the Criminal Code. The Committee notes the statistics provided by the Government in its report. Thus, in the last three years (2012, 2014 and 2015), the number of prosecutions under section 189 relating to human trafficking remained nearly similar as the penalties. Regarding section 191, subsections (1) and (2) relating to the use of force or illegal threat to compel another person’s conduct, in 2013, 1,077 persons were convicted, in 2014, there were 1,032 persons convicted and in 2015, there were 992 persons convicted. Under this section and within those past three years, convicted persons were mostly punished with a deprivation of liberty and a fine apart from deprivation of liberty, whereas penalties such as restriction of liberty or a solely imposed fine were less applied. Finally, in 2013 under Chapter XXVIII relating to the offences against the rights of the persons pursuing paid work, which comprises sections 218 to 221, 412 persons were convicted; in 2014, there were 306 persons convicted; and in 2015 there were 288 persons convicted. The same penalties of the deprivation of liberty and the solely imposed fines applied to the convicted. The Committee takes due note of this information especially, of the application in practice of section 191 and Chapter XXVIII of the Penal Code regarding the number of convictions and the penalties applied. The Committee encourages the Government to pursue its efforts to strengthen the effectiveness of investigations and ensure that prosecutions are carried out against perpetrators of forced labour. It also requests the Government to continue to provide information on the application in practice of the provisions mentioned above, indicating the number of convictions and specific penalties applied.

Article 2(2)(c). Work of prisoners for private individuals, companies and associations. In its previous comments, the Committee noted that certain provisions of the Executive Penal Code allow prisoners to work for private employers. The Committee noted that according to the Government, the consent of the prisoners to work for private companies is expressed. Thus, the Committee requested the Government to take the necessary measures to ensure that such consent is provided formally, informed and free from the menace of a penalty and authenticated by the conditions of work approximating a free labour relationship.

The Committee notes the Government’s indication that its previous position on this issue remains valid. According to the Act of 6 June 1997, work is one of the basic duties of a convict and such work is paid (section 123, paragraph 1, and section 102, paragraph 4, Executive Penal Code). The Committee notes the Government’s indication that following a ruling from the Constitutional Tribunal of 2010 considering that setting the amount of remuneration for the work provided by prisoners at half the minimum wage was incompatible with the Constitution, amendments were made to the Executive Penal Code in March 2011. The Government indicates that current remuneration for a convicted employee is set in a manner ensuring the minimum wage is obtained provided the monthly period of working time is satisfied. The Government states that the regulation on work of persons deprived of liberty respects the full protection of their dignity and satisfies the requirements of the appropriate treatment of those persons. The Committee notes the Government’s indication that the work of convicts is provided under comparable conditions to voluntary employment and that convicts’ complaints are related to the lack of work opportunities. The Committee notes that a person who is deprived of liberty and who works outside of the prison remains under the supervision of a penal institution, which is obliged to check the working conditions.

The Committee also notes that under the grounds of the Executive Penal Code, a convict can only be employed upon consent of and on terms and conditions set out by the director of a penal institution, ensuring that the penalty of deprivation of liberty is served properly. Thus, the Government indicates that even though the formal consent of the convicted person is not required, the employees’ rights are observed and such work is in compliance with the Convention. The Committee notes the Government’s statement, in its more recent report, that with regard to the issue of prison labour, two bills concerning the rights of convicted persons who are subjected to deprivation of liberty are being prepared: the Bill amending the Executive Criminal Code and the Bill amending the Act on the Employment of Individuals Deprived of Liberty. According to the Government’s indication, among the proposed changes to include providing convicted persons with more opportunities to perform paid and unpaid work, and this unpaid work will require the consent of the convicted person.

The Committee takes note of this information and requests once again the Government to formalize the consent of the convicted persons in order to ensure the full protection of their dignity and the respect of the appropriate treatment of prisoners, as well as to ensure that the work of prisoners for private entities can only be carried out with their prior, free, formalized and informed consent. The Committee asks the Government to provide information on the progress made with this regard.

[The Government is asked to supply full particulars to the Conference at its 106th Session and to reply in full to the present comments in 2017.]