1
MINISTRY OF SOCIAL SECURITY AND LABOUR
REPUBLIC OF LITHUANIA
International Labour Standards Department
International Labour Office4, route des Morillons
CH-1211 GENEVE 22 / No. (29.5-61) SD-
Ref. ILO: acd-8-0(2009)
Article 22 of the Constitution of the ILO
Report including answers
to the direct request
Report for the period ending June 2011
made by the Government of theRepublic of Lithuania
on the
Forced labour convention, 1930 (No. 29)
(ratification registered on 26 September 1994)
I. These provisions of the Convention are applied by implementing the legislation and regulations of the Republic of Lithuania.
The list of legislation and regulations which are in line with the provisions of Convention No.29 concerning Forced or Compulsory Labour includes the following:
The Constitution of the Republic of Lithuania;
The Labour Code of the Republic of Lithuania;
The Criminal Code of the Republic of Lihuania;
Law on Support for Employment of the Republic of Lithuania;
Law on the State Labour Inspectorate of the Republic of Lithuania;
Law on Trade Unions of the Republic of Lithuania;
Law on Safety and Health at Work of the Republic of Lithuania;
The Code of Administrative Law Violations of the Republic of Lithuania;
The Penal Code of the Republic of Lithuania;
Law on the Organisation of the National Defence System and Military Service of the Republic of Lithuania;
Law on Civil Protection of the Republic of Lithuania;
Law on Military Service of the Republic of Lithuania.
Government Resolution No. 36 of the Republic of Lithuania of 21 January 1997, Concerning the Procedure of Performing Unpaid Work.
II.Article138(3) of the Constitution of the Republic of Lithuania states that international treaties which have been ratified by the Seimas (Parliament) of the Republic of Lithuania shall be the constituent part of the legal system of the Republic of Lithuania, and Article 11 of the Republic of Lithuania Law on Treaties, No.VIII-1248, passed on 22 June 1999, stipulates that the treaties of the Republic of Lithuania that have entered into force shall be binding upon the Republic of Lithuania.
Article 1.
The Constitution of the Republic of Lithuania, Article 48 stipulates that each human being may freely choose a job or business, and shall have the right to have proper, safe and healthy conditions at work, to receive fair pay for work and social security in the event of unemployment. This article of the Constitution prohibits any forced labour.
The Penal Code of the Republic of Lithuania (hereinafter referred to as the PC) provides for the work of convicts but it is not considered forced labour. The 1950 Convention for Protection of Human Rights and Fundamental Freedoms, Article 4 stipulates that no one shall be required to perform forced or compulsory labour. Paragraph 3 of the same article specifies that the term “forced or compulsory labour” shall not include any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of thisConvention or during conditional release from such detention. The 1966 United Nations International Covenant on Civil and Political Rights, Article 8 provides for the work normally required of a person who is under detention in consequence of a lawful order of a court which shall not be considered forced or compulsory labour.
PC Article 11 provides for the work of convicts as one of corrective measures applied to persons sentenced to imprisonment. Pursuant to PC Article 125, every convict serving a sentence imprisonment must work if the work is offered by the administration of a corrective institution. Such work is one of the key elements of re-socialisation of convicts penalised by imprisonment and has a rather significant role to play in the correction process. Moreover, the implementation of the duty to work does not involve the application of any forced methods. Those who refuse to work are not subject to any disciplinary sanctions. A working process helps convicts acquire a habit to work, respect work and the results of their work. Work helps convicts gain working skills, acquire a speciality, raise qualifications, etc.
The other cases when PC allows convicts’ work include the wish or consent expressed by the convict. Persons serving a sentence of life imprisonment may, if they wish, perform the work selected by the administration of penitentiary or corrective institutions (PC Article 68 Paragraphs 2 and 3).A person serving a penalty of arrest may work if the administration of the detention facility offers work for him or her and the convict gives his or her consent. Therefore, such work may not be considered forced or compulsory labour.
The Penal Code, Article 125(8) stipulates that the economic and production activities of corrective institutions and state enterprises operating under them must serve the ultimate goal: teach the convict seek life objectives by lawful means and measures. All employed convicts are paid for the work in accordance with the quality and quantity of the work they perform. The work of convicts is controlled by employees of corrective institutions and state enterprises operating under them.
In 2008, on average 28.7% of convicts were employed, including: 15.3% in state enterprises under correctional institutions and 13.4% – in correctional institutions. In 2009, on average 25.4% of convicts were employed, including: 13.2% in state enterprises under correctional institutions and 12.2% – in correctional institutions. The respective figures for 2010 are 27.9%, 15.7% and 12.2%.
Work is one of the most important components of the correction process, applied in combination with other measures. The European Prison Rules approved by Recommendation No. R(2006)2 of the Committee of Ministers of the Council of Europe state that work should maintain or develop the convict‘s capacities to earn for living after leaving the prison.
At present there are over 7,800 convicts serving imprisonment sentence in the 11 correctional institutions of the Prisons Department under the Ministry of Justice of the Republic of Lithuania. Approx. 1,220 of them are employed in production. Three state enterprises operated under the correctional institutions, with the rights and duties of the owner held by the Prisons Department:
- state enterprise under the Alytus correctional institution;
- state enterprise under the Marijampolė correctional institution;
- state enterprise under the Pravieniškes correctional institution No. 1.
State enterprises specialise in the processing of plastic, timber and metal, manufacturing of electricity installations and electrotechnical products, textile, knitwear articles, footwear, bread, concrete products, architectural hardware, cast iron alloys, soft, carcass and school furniture. They provide laundry, timber cutting and drying, car body repair, sewing and casting services to legal and natural persons.
According to Clauses 3 and 4 of resolution of the Government of the Republic of Lithuania “Concerning approval of the Procedure Governing Compulsory Works in Emergencies and Compensation for Such Works“ No. 512 of 4 May 2010 (“the Procedure“) and Article 17 of the Republic of Lithuania Law on Civil Safety (Žin., 2009, Nr. 159-7207), compulsory works are only performed when the capacities and material resources of the civil safety system are not sufficient for response to emergencies and their consequences. Compulsory works, where necessary, are performed only in case of emergencies in order to respond to the emergency and to eliminate its consequences.
In order not to create a too heavy burden on residents by compulsory works in emergencies, Clause 5, Section II of the Procedure states that compulsory works must be performed by able-for-work residents older than 18 years except servicemen of the actual military service, pregnant women, women who have recently given birth, disabled persons, single parents raising children
Clause 8 of the Procedure establishes the sequence to be followed in mobilising residents, economic entities and other organisations for the works, in particular using those entities and institutions who operations were suspended due to the emergency, then other entities and institutions which are not directly affected by the emergency, then unemployed persons, other residents, residents employed at municipal facilities of vital significance, and residents employed at facilities of national significance and dangerous facilities. Section IV of the Procedure provides for the compensation for the works performed. Expenses may be compensated for from the reserve of the Director of Municipal Administration or from the reserve of the Republic of Lithuania.
No compulsory emergency works were organised during the period since restoration of independence of the Republic of Lithuania.
Article 2.
With respect the application of Forced Labour Convention, Article 2(2)(a) (the term forced or compulsory labour shall not include any work or service exacted in virtue of compulsory military service laws for work of a purely military character), i.e. with respect to guarantees which are provided to ensure that services demanded for military purposes should be used only for military purposes. The main legal act regulating the general duties and rights of servicemen and commanders (superiors) is the Statute of Military Service (hereinafter referred to as the Service Statute) approved by Order No. V-163 of the Minister of National Defence of 29 February 2008) (Official Gazette, 2608, No.30-1057). Paragraph 24.5 of the Service Statute specifies that commanders (superiors) must ensure proper conditions of service for their subordinates. Paragraph 26.3 of the Service Statute provides for the right of commanders (superiors) to repeal and change the order of a lower commander (superior) if the order were adopted by exceeding one’s powers, is unlawful or the measures chosen are not the most suitable, i.e. the objective of the order could be achieved by taking other, more effective and simple measures. Pursuant to the Statute on the Discipline of the Army of the Republic of Lithuania (Official Gazette, 1999, No. 51-1635; 2003, No. 38-1674), Article 11(3), if the serviceman understands that he is given an unlawful order, he shall refrain from following it and must notify thereby a commander (superior) who is higher than the commander (superior) who passed the unlawful order. The Statute of the Discipline of the Army, Article 57 provides for the right of a serviceman to complain about the violation of the rights guaranteed by the law and other regulations or when he is given an unlawful order. The Law on the Organisation of the National Defence System and Military Service (hereinafter referred to as the Defence System Law) (Official Gazette, 1998, No. 49-1325) Article 21(5) specifies that a serviceman whose rights as guaranteed by this Law or relating to the serviceman’s service in the national defence system have been violated may refer to a superior commander or the Inspector General of National Defence. These persons must investigate the facts and take the measures necessary to forthwith eliminate the violations. Said legislation provides for a clear definition of the rights and duties of servicemen and commanders (superiors), which serves as a guarantee to servicemen that when serving compulsory military service they will not be forced to carry out the functions (work) which are not related to their service. The legislation provides for the basis of defending the servicemen’s rights if the latter were violated.
Furthermore, there have been no complaints made by servicemen of the compulsory military service with respect to violated rights of forcing them to perform forced labour for non-military purposes in serving compulsory military service.
The Law on Civil Service, Article 18 provides for a temporary transfer of a career civil servant to another post, which shall be possible only with his written consent, except in cases of the state of war or emergency or in extraordinary situations.A career civil servant may not be transferred to another post on a temporary basis for a period exceeding one year in any five years of his employment in the service.Remuneration paid to a career civil servant transferred to another post on a temporary basis shall be not less than his remuneration before the transfer.According to Article 181 of the Law, a statute public servant can only be transferred to another position by his/her written consent, except for cases of state of law, state of emergency or extraordinary situations. Such statutory public servant who has been temporarily transferred to another position is paid a salary not lower than his (her) previous salary.
Article 19 of the same law stipulates that a career civil servant or a statutory civil servant may, with his written consent, be transferred to another post at a Lithuanian diplomatic mission, consular post or mission to an international organisation as well as to postings on special missions.A career civil servant or a statutory civil servant may, with his written consent, be transferred, on a temporary basis, to another post at an international organisation or an institution of a foreign country.Usually, a career civil servant transferred pursuant to paragraph 1 or 2 of this Article may occupy another post for a period not exceeding three years, unless otherwise provided by an international treaty or EU legislation.
Pursuant to the Labour Code, Article 121, an employer shall have the right to transfer an employee for a period of up to one month to another work not agreed in an employment contract in the same location, as well as to change other conditions laid down in Articles 95(1) and (2) of this Code, when it is necessary to prevent a natural disaster or industrial emergency, to respond to it or immediately eliminate its consequences, to prevent accidents, to fight fire and in other cases of emergency that have not been anticipated. It shall be prohibited to transfer an employee to such work, which is not permitted due to the employee’s health status. In the cases specified in paragraph 1 of this Article an employee shall be paid a wage according to the work performed. If, upon the transfer of an employee to another work, his wage decreases for the reasons beyond his control, the employee shall retain the average wage of his previous work.
The State Labour Inspectorate monitors compliance of employers with labour legislation and regulations and, where necessary, requires them to eliminate violations and sanction them.
Pursuant to Article 17 of the Law on Trade Unions, trade unions shall have the right to supervise employers adherence to and implementation of the labour, economic and social laws related to the rights and interests of their members as well as of collective and other agreements.For this purpose, trade unions may have inspectorates, legal advice services and other institutions. While performing the functions of supervision provided for in Paragraph 1 hereof, persons authorised by a trade union shall have the right to freely enter enterprises, institutions and organisations which employ members of the trade union and granted access to the documents concerning working, economic and social conditions of its members.
Article 25.
On 23 June 2005, the Seimas of the Republic of Lithuania adopted the Law on Amending Articles 48, 60, 145, 147, 157, 212, 213, 214, 215, 226, 249, 251, 252, 256, 267, 270, 272, 274 and 280 of the Criminal Code of the Republic of Lithuania, annex thereto and Supplementing it with Articles 47(1), 199(1), 199(2), 267(1), 270(1) and 308(1). As a result, if a person were used for forced labour,Since 30 June 2005, the Criminal Code, Article 147(1) has come into effect, which is in line with Article 25 of Convention No. 29. It reads as follows:
Article 1471. Use for Forced Labour
1. A person who, by using physical violence or threats or by otherwise depriving of a possibility of resistance or by taking advantage of a person’s dependence unlawfully forces him to perform a certain work
shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to three years.
2. A person who commits the act indicated in paragraph 1 of this Article by forcing a person to work under the conditions of slavery or under other inhuman conditions.
shall be punished by arrest or by imprisonment for a term of up to eight years.
3. A legal entity shall also be held liable for the acts provided for in this Article.
III. During 2005-2007, district courts did not hear any cases with respect to the use of illicit compulsory or forced labour.
IV. No particular difficulties were faced in application of the Convention.
V. In accordance with the provisions laid down in Article 23(2) of the ILO Constitution, copies of this report were sent to the following organisations:
Lithuanian Trade Union “Solidarumas”
Lithuanian Trade Unions’ Confederation
Lithuanian Labour Federation
Lithuanian Confederation of Industrialists
Lithuanian Business Employers’ Confederation.
Comments from the above organisations concerning the report have not yet been received.
Answers to the Direct request
Article 1(1) and 2 (1) of the Convention. Freedom of professional military personnel to leave the service
Provisions of Article 31(2)(1) of the Republic of Lithuania Law on the Organisation of the National Defence System and the Military Service (hereinafter referred to as the “Law“) establishing that the agreements on professional military service concluded with the officers starting the service upon graduation from the Lithuanian Military Academy or a foreign military establment training officers are concluded for the term ending in the year of pre-set release to reserve, have not been amended as yer, however, such amendments are going to be initiated.
Article 37 of the Law provides for the serviceman‘s right to early termination the agreement on professional military service on his own initiative only for valid reasons and only subject to decision of the Ministr of National Defence. This right is implemented according to the Procedure for the Termination of Service on the Initiative of the Serviceman approved by order of the Minister of National Defence of the Republic of Lithuania No. V-1293 of 19 December 2006, which sets out the procedures for early termination of the agreement, dismissal of the serviceman from the service, and release to the reserve.
Since 2009, all the requests for leaving the service received by the Ministry of the National Defence and the Lithuanian Armed Forces were satisfied under the provisions of Article 7(2) of the Law: in 2009 – 71 requests received and satisfied, in 2010 – 147, in 2011 (from 1 January to 10 May) – 102. These requests include requests by persons whose service agreements were of unlimited duration: in 2009 – 5 such requests received and satisfied, in 2010 – 6, in 2011 (from 1 January to 10 May) – 7.
Article 2(2)(c). Convicts‘ work for private individuals, companies or asociations.
We would like to note that, despite the convict‘s duty to work as established in Article 125(1) of the Penal Code of the Republic of Lithuania (“the Code“), if the work is offered by the administration of the correctional insituttion, convict‘s work is not deemed to be forced work under Article 2(1) of the Convention, as refusal by the convict to perform the work offered does not create any negative legal consequences for the convict, i. e. according to the Code, no penalties are applied to the convict in case of refusal.