Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 29) sur le travail forcé, 1930 - Chili (Ratification: 1933)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Chili (Ratification: 2021)

The Committee welcomes the ratification by Chile of the Protocol of 2014 to the Forced Labor Convention, 1930, and hopes that the Government will provide detailed information on its application, in accordance with the report form adopted by the Governing Body.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee welcomed the actions taken by the Government to introduce an action plan to combat trafficking in persons based on a comprehensive and coordinated approach, and encouraged the Government to continue taking measures for its implementation. The Committee also requested the Government to continue reinforcing the efforts made to provide adequate protection for victims and invited it to continue providing information on the prosecutions brought under section 411 quater of the Penal Code, (introduced by Act No. 20507 of 2011), which criminalizes trafficking in persons.

The Committee notes the detailed information provided by the Government in its report on the measures taken within the framework of the implementation of the four strategic axes of the action plan to combat trafficking in persons for the period 2019–2022. It notes in particular the continuation of training activities for public officials and personnel of the brigade to investigate trafficking in persons under the Chilean Police (BRITRAP), and the carrying out of awareness-raising activities among vulnerable groups and priority sectors, including Venezuelan migrants. In the area of protection, the Committee notes that the Intersectoral Protocol on assistance for victims of trafficking in persons continues to operate and that, since its creation in 2013, assistance has been provided to 229 persons (59 victims of sexual exploitation and 170 victims of labour exploitation) in the areas of health, legal assistance, migration regulation, social assistance and education. According to information from the under-secretariat for crime prevention, 59 per cent of the victims who came under the Intersectoral Protocol in 2020 had an irregular migratory status and 55 percent were women. In this regard, the Committee takes due note that under section 71 of Act No. 21325 on migration and aliens enacted on 20 April 2021 (which will enter into force once the corresponding regulations have been issued), victims of trafficking in persons who are not nationals or permanent residents in the country will have the right to submit a request for authorization of temporary residence for a minimum period of 12 months, during which time they may file criminal and civil actions and initiate proceedings to regularize their residency status.

With regard to the enforcement of criminal legislation against trafficking in persons, the Committee notes that from 2011 to 2020, 21 convictions were obtained (13 relating to trafficking for the purpose of sexual exploitation and eight for trafficking for the purpose of labour exploitation) and 34 persons were convicted. In addition, reinforcement was provided for personnel capacities and material resources available to the brigade to investigate trafficking in persons, which has three specialized units in the metropolitan region, Arica and Iquique.

The Committee encourages the Government to continue its efforts to combat trafficking in persons, and to continue to take steps to implement the action plan and evaluate its impact, as well as to strengthen the capacities of the bodies responsible for identifying and protecting victims, and investigating cases of trafficking. It requests the Government to provide information in this regard, and on investigations and legal proceedings initiated and concluded under section 411 quater of the Penal Code, indicating the number of convictions and penalties imposed. Given that, according to the statistics provided by the Government, a large number of victims of trafficking are migrant men and women in an irregular situation, the Committee requests the Government to continue to provide information on the measures taken to raise awareness, inform and protect these victims in particular, including information on the shelters made available to them and agreements signed with the countries of origin. It also requests the Government to provide information on the number of persons who have benefited from the procedure established under section 71 of Act No. 21325 on migration and aliens.

Articles 1(1) and 2(1). 1. Vulnerability of migrant workers to conditions of forced labour. The Committee notes that section 9 of Act No. 21325 on migration and aliens establishes that irregular migration does not constitute a crime. Section 13 of Act No. 21325 provides that the State shall promote respect and protection of non-national women, irrespective of their migratory status, who shall also have the right to access all institutions and mechanisms that safeguard their well-being. The Committee takes note that, in its concluding observations of 11 May 2021, the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families referred to the lack of information on steps taken to monitor the situation of women migrant domestic workers, including the more than 40 per cent who are in an irregular situation, and on complaint mechanisms (CMW/C/CHL/CO/2, para. 33). In this respect, the Committee recalls that migrant workers, in particular those in an irregular situation, are among the persons most vulnerable to conditions of labour that may amount to forced labour. The Committee takes note of the legal provisions adopted to guarantee respect of the rights of migrant workers in an irregular situation and encourages the Government to continue taking measures in this regard. To this end, the Committee requests the Government to provide information on the measures taken to detect breaches of the rights of migrant workers in an irregular situation which may result in practices that amount to forced labour, in particular in the domestic work sector.

2. Impact of the operation of the duty lawyer roster system on the free exercise of the profession of lawyer. For several years, the Committee has been referring to the recommendations formulated in 2008 by the tripartite committee set up to examine the representation made by the Colegio de Abogados de Chile on the operation of the duty lawyer roster system. In particular, the Committee referred to the need to review the overall functioning of the duty lawyer roster system to ensure that it had no adverse effects on the free exercise of the profession of lawyer, and to take the necessary measures to ensure that such a review took into account the volume of work imposed, the frequency of assignments, the financial losses incurred and the excessive nature of the sanction that is currently envisaged. In this respect, the Committee noted the decision of the Constitutional Court of 29 July 2009 (Decision No. 1254-08-INC) finding unconstitutional the unpaid nature of the legal aid provided by duty lawyers under section 595 of the Basic Code on Courts. This provision required duty lawyers to provide legal aid free of charge to persons with a low income designated by the trial judges. It also noted the Government’s efforts to resolve the weaknesses identified in the public legal aid system.

The Committee notes that, in January 2021, the under-secretariat for human rights submitted to National Congress the Bill providing for the establishment of the Bill providing for the establishment of the National Service for Access to Justice (bulletin No. 13991-07) as an institution responsible for providing legal advice to persons needing defence and not able to provide it for themselves, for which the above Service will have the necessary personnel. The Committee notes the Government’s indication that the legal initiative does not envisage the removal of the position of duty lawyers but that its implementation would have a positive impact on the number of cases which would be assigned to them. The Committee hopes that, once the legislation regulating the National Service for Access to Justice is adopted, it may have the effect of ensuring that the obligation imposed on duty lawyers to defend cases assigned to them (under sections 595 and 598 of the Basic Code on Courts, and sections 18 and 19 of Act No. 19.968 providing for the establishment of the family courts) is contained with reasonable limits of proportionality in respect of the volume of work imposed, the frequency of assignments and the financial compensation. The Committee meanwhile requests the Government to provide statistical and up-to-date information on the number of duty lawyers annually assigned to defend cases, the number of cases per lawyer and the frequency with which these are assigned, as well as information on the financial compensation granted in this regard.