Comments adopted by the CEACR: Bulgaria

Adopted by the CEACR in 2021

C006 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

C029 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of Independent Trade Unions in Bulgaria (CITUB) communicated with the Government’s report. The Committee notes that in its observations, the CITUB encourages the Government to speed up the procedure for the ratification of the Protocol of 2014 to the Forced Labour Convention, 1930.

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Law enforcement. In its previous comments, the Committee noted that section 159(a), (b) and (c) of the Criminal Code criminalizes internal and external trafficking in persons for both sexual and labour exploitation, as well as the use of services of trafficking victims, and establishes penalties of two to 15 years of imprisonment and a fine. It also noted the revision and adoption of the National Mechanism for Referral of and Support to the Victims of Human trafficking. Noting that in the majority of cases related to trafficking in persons the sanctions that had been imposed were suspended imprisonment and a fine, the Committee requested the Government to provide information in relation to the identification of victims and law enforcement measures.

The Committee notes the information provided by the Government in its report on the data from the prosecutor’s office concerning the criminal proceedings for trafficking in persons under sections 159a–159d of the Criminal Code. According to this data, in 2020, 356 proceedings were initiated, including 76 newly filed cases and 73 penal sanctions were imposed on 46 convicted persons, with imprisonment (13), fines (27), and suspended sentences (31) and others (2). Similarly, during the first quarter of 2021, 176 proceedings were initiated, including 16 newly filed cases, and 17 penal sanctions were imposed on 13 convicted persons, with imprisonment (5), fines (4) and suspended sentences (8). The Government indicates that the fine is imposed cumulatively with imprisonment. The Committee also notes that in 2020, 458 victims of trafficking were identified under sections 159(a) to (d), including 397 women and 26 minors.

The Government further refers to certain difficulties that are generally encountered before and during the trial, such as : (i) the identification of victims, especially in relation to international trafficking; (ii) the relationship between the victim and the perpetrator which prevents the timely reporting of the crime and also the reluctance of the victims to cooperate with the investigation and to testify; and (iii) the change in the testimony of the victims due to fear, threats, or promises made by traffickers. In most cases, victims of trafficking for forced labour are not identified as victims of a criminal activity and the labour inspectors rather than referring the cases to the prosecutor’s office close the case by imposing a pecuniary sanction. According to the information provided by the Government, out of the 279 cases of trafficking in persons received by the National Commission for Combating Trafficking in Human Beings (NCCTHB) from 2017 to 2020, 50 cases concerned trafficking for labour exploitation. The Committee requests the Government to continue to take measures to address the difficulties encountered in relation to the identification and prosecution of cases of trafficking in persons, including through: (i) providing appropriate training to officials of the Labour Inspectorate; (ii) strengthening their capacities to better identify victims of trafficking for forced labour and gather evidence for the prosecution of the perpetrators; and (iii) by strengthening protection and counselling to victims and witnesses during the investigation and court proceedings. Furthermore, noting that a significant number of the penalties imposed are suspended sentences of imprisonment, the Committee requests the Government to take the necessary measures to ensure that sufficiently effective and dissuasive penalties are applied to perpetrators, in conformity with Article 25 of the Convention. The Committee finally requests the Government to continue providing information on the application in practice of section 159(a), (b) and (c) of the Criminal Code, including on the number of prosecutions, convictions and penalties applied.

2. National Strategy for Combating Trafficking in Human Beings. The Committee welcomes the Government’s information concerning the adoption of the National Strategy for Combating Trafficking in Human Beings 2017–2021, which sets out national priorities including: active prevention with a focus on vulnerable groups; increased identification, protection, assistance and support for victims; effective prosecution and punishment of the crime of trafficking in human beings; enhanced inter-ministerial and international coordination and cooperation. This strategy is implemented through annual national programmes developed and implemented by the NCCTHB. The Government indicates that every year, the NCCTHB conducts training sessions for investigators, magistrates, social workers, labour intermediaries, diplomats, migration authorities, refugee agencies and pedagogues on good practices on preventing trafficking in persons, improving methods of investigation and effective prosecution and punishment and protection of victims. In addition, the NCCTHB organizes three national campaigns at the national level for the prevention of trafficking in persons for sexual and labour exploitation and on new forms and trends in the trafficking in persons. The Committee also notes the detailed information provided on the various forums, workshops, campaigns, lectures and information sessions carried out from 2017 to 2021 under the national campaign organized by the NCCTHB which were addressed to different sections of the population. The 2020 and 2021 national campaigns, having taking into account the COVID-19 pandemic situation that led to an increased risk of being trafficked for labour exploitation, have focussed on initiatives that aim to raise awareness and sensitivity of the public and vulnerable groups on ways to prevent risky situations and ensure safe labour migration. The Committee encourages the Government to continue its efforts to combat trafficking in persons, including through the implementation of the priorities set out in the National Strategy for Combating Trafficking in Human Beings 2017-2021 and through the actions carried out by the NCCTHB. It requests the Government to communicate information on the measures taken in this regard as well as the monitoring and assessment of these measures by the NCCTHB, as provided for under the Strategy.

3. Protection and reintegration of victims. The Committee notes the Government’s information on the amendments to the Combating Trafficking of Human Beings Act (CTHBA), which introduces a clear definition of the period for unconditional support for victims of trafficking with a clear regulation of its functions and duration as well as the possibility to open specialized shelters for the subsequent reintegration of victims of human trafficking. The Government indicates that pursuant to these amendments, the NCCTHB has initiated specialized services for victims of trafficking, and runs shelters for temporary accommodation as well as support centres and shelters for subsequent reintegration. Victims and potential victims of trafficking are provided accommodation and specialised services according to their needs, which include, humanitarian, psychological, social and medical assistance, as well as legal counselling. In 2019, the NCCTHB established a total of five state-funded services, including two shelters for temporary accommodation, two centres for protection and assistance and one shelter for accommodation and subsequent reintegration.. The Committee further notes the detailed information provided by the Government concerning the number of identified victims of trafficking who have received support in the state-funded services from 2018 to April 2021. The Committee strongly encourages the Government to continue taking effective measures to ensure that victims of trafficking are provided with appropriate protection and services, and requests it to continue to provide information on the assistance provided and the number of persons benefiting from it.

Article 2(2)(c). Prison labour. The Committee previously noted that, under section 96(1) of the Execution of Penal Sanctions and Detention in Custody Act 2009 (EPSDCA), persons deprived of their liberty shall be obliged to perform the work assigned to them by the prison administration, non-compliance with this obligation being punishable with disciplinary sanctions under sections 100(2) and 101 of the Act. Pursuant to section 174(1) of the Act, prisoners may work on sites of legal and natural persons under conditions and procedures established by the Minister of Justice. Furthermore, according to section 164 of the Rules Implementing the Execution of Penal Sanctions and Detention in Custody Act 2010 (as amended up to 2017) (Implementing Rules), prisoners shall file an application for the jobs opened in the State Enterprise “Prison Work Fund” and in the servicing and utility activity of the prisons. The Government indicated that, in practice, prisoners are not forced to work, their work is regulated by the labour legislation and the work on external sites is always performed at the wish of the persons concerned, who shall file applications to the chief of the respective prison. The Committee, however, noted that according to section 167(1) of the Implementing Rules, all prisoners, who are capable of working, shall be obliged to perform the work assigned to them by the administration. Moreover, under section 163, the express written consent for participation in labour activities is only explicitly required for the accused and the defendants, not for all prisoners, in particular, the convicts. The Committee therefore encouraged the Government to take the necessary measures to align its national legislation with the indicated practice.

The Committee notes the Government’s information that the obligation of the prison administration to ensure proper work to persons deprived of their liberty is covered under section 77 of the EPSCDA, which states that during the service of the sentence, persons deprived of their liberty shall have the right to suitable work. As far as possible, the preference of the person deprived of his/her liberty for a particular kind of work shall be satisfied. The Government further states that it is in the process of preparing draft amendments to the EPSDCA and its Implementing Rules which will clarify the provisions of sections 163 and 167(1) of the Implementing Rules. The Committee expresses the firm hope that the Government will take the necessary measures, during the preparation of the draft amendments, to ensure that the Rules Implementing the Execution of Penalties and Detention in Custody Act are amended so as to provide that any work or service performed by convicted prisoners for private undertakings is carried out voluntarily with their formal freely given and informed consent. It requests the Government to provide information on any progress made in this regard.

C078 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 5 of Convention No. 77 and Convention No. 78 and Article 3(3) of Convention No. 124. Expense of medical examination for fitness for employment to be borne by the employer. The Committee notes that sections 302 and 303 of the Labour Code of 1986, as amended up to 2011, require employees under the age of 18 years to undergo a preliminary and regular medical examination for fitness for employment. It also notes that according to section 287(2) of the Labour Code, the expense of the periodic medical examination of workers shall be borne by the employer. It noted the observations of the Confederation of Independent Trade Unions of Bulgaria (CITUB) that the national laws are silent with regard to who should bear the expense of the preliminary medical examination for fitness for employment and pointed out that section 287(2) of the Labour Code hinders the preliminary medical examination of employees, particularly of those under 18 years of age who can hardly afford such expenses. The Committee requested the Government to indicate the measures taken or envisaged to ensure that the preliminary medical examination for fitness for employment of young persons under the age of 18 years shall not involve the young person or his/her parents, in any expense.

The Committee notes with interest the Government’s information that Ordinance No 9 of 2019 determining the package of health activities under the National Health Insurance Fund guarantees the right of minors under 18 years to obtain the necessary medical certificate for employment without paying.

C079 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

C105 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Relevance of compulsory prison labour to the Convention. The Committee previously observed that convicted prisoners have the obligation to perform labour pursuant to the Execution of Penal Sanctions and Detention in Custody Act of 2009 and the Rules Implementing the Execution of Penalties and Detention in Custody Act of 2010, as amended in 2017. It noted that according to section 96(1) of the Act, persons deprived of their liberty shall be obliged to perform the work assigned to them by the prison administration, non-compliance with this obligation being punishable with disciplinary sanctions under sections 100(2) (1 and 5) and 101 of the Act. Section 167(1) of the Implementing Rules states that all prisoners, who are capable of working, are obliged to perform work assigned to them by the administration.

The Committee notes the Government’s information in its report that the provisions under the Execution of Penal Sanctions and Detention in Custody Act and its Implementing regulations will be discussed during the forthcoming regulatory amendments. In this regard, the Committee recalls that, in most cases, labour imposed on persons as a consequence of a conviction in a court of law will have no bearing on the application of the Convention, but if a person is in any way compelled to work because he or she holds or has expressed particular political views, has committed a breach of labour discipline or has participated in a strike, this situation is covered by the Convention. The Committee requests the Government to provide information on the amendments adopted to the legislation governing the execution of penal sanctions, indicating whether convicted persons remain under the obligation to perform labour.

Article 1(a) and (c). Penal sanctions involving compulsory labour as a punishment for expressing political views and for breaches of labour discipline. The Committee previously noted that several provisions of the Penal Code provide for sanctions of imprisonment, which involve compulsory prison labour, in situations that may fall within the scope of:

-Article 1(a) of the Convention in relation to expressing political views (section 108(1) for the propagation of “anti-democratic ideology”; section 164 for dissension on religious grounds by speech, press, action or otherwise; section 166 for using religion and church in a propaganda against authorities, by speech, press, action or otherwise; and section 174(a)(2) for conducting a public assembly, meeting or manifestation, in violation of legislation); and
-Article 1(c) of the Convention in relation to breaches of labour discipline (section 107 for creating difficulties or disorder in the functioning of industry, transport, agriculture or other branches of the economy or individual enterprises, by obstructing their normal work or by non-performing regular duties; and section 228(1) for issuing poor-quality, non-standard or incomplete products).

The Committee notes the copy of the court decisions handed down in 2020 and 2016 for violations under section 164 (two cases), section 174(a) (one case) and section 228 (one case) of the Penal Code, submitted by the Government with its report. In all the cases, no criminal liability was established and the accused were imposed with administrative penalty involving fines.

While acknowledging that no penal sanctions involving compulsory labour were imposed under the above mentioned provisions, the Committee nevertheless recalls that sections 107, 108(1), 164, 166, 174(a)(2) and 228 of the Penal Code are worded in terms broad enough to lend themselves to application as a means of punishment for peacefully expressing views or breaches of labour discipline and, in so far as they are enforceable with sanctions of imprisonment involving compulsory prison labour, they may have a bearing on the application of the Convention. The Committee therefore requests the Government to provide information on the measures taken to review the above-mentioned provisions so that no penal sanctions involving compulsory prison labour may be imposed on persons for peacefully expressing political views or for breaches of labour discipline. The Committee also requests the Government to continue to provide information on the application of sections 107, 108(1), 164, 166, 174(a)(2) and 228 of the Penal Code in practice, including copies of court decisions defining or illustrating their scope as well as the sanctions applied.

C131 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the Government’s first report and the national measures and legal provisions giving effect to the Convention, particularly the Labour Code and the Ordinance No. 129 of 1991 on wage bargaining. It also takes note of the observations of the Confederation of Independent Trade Unions in Bulgaria (CITUB) communicated with the Government’s report. It further notes the observations of the Bulgarian Industrial Association (BIA), the Bulgarian Industrial Capital Association (BICA) and the Union for Private Economic Enterprise (UPEE) communicated with the Government’s report as well as those of the Bulgarian Chambers of Commerce and Industry (BCCI) received in 2021.

Articles 3 and 4(2) of the Convention. Elements to be taken into consideration in determining the level of minimum wages. Full consultation with the social partners. The Committee notes that the Government indicates that while the legislation does not provide for economic and social criteria for determining the level of the minimum wage, in recent years, the minimum wage has been adjusted in accordance with the gross domestic product’s growth, the average wage growth, the consumer price index and other indicators. The Government indicates that the draft decrees on minimum wages adopted by the Council of Ministers after consultation with the National Council for Tripartite Cooperation are supported by preliminary impact assessments and reports prepared by the Ministry of Labour and Social Policy on economic and social indicators, including the needs of workers and their families and economic factors. The Government also indicates that on 17 June 2020, it signed the National Tripartite Agreement with the national representative organizations of employers and workers aiming at resuming negotiations on the adoption of a transparent mechanism for determining the country’s minimum wage, including bipartite negotiations on minimum wages in 2021. The Government adds that although some agreements have been reached on minimum wage issues, an objective mechanism for determining the minimum wages’ level has not yet been completed due to discrepancies among social partners on the interpretation of the economic and social indicators to be considered. In this respect, the Committee notes that in its observations: (i) the CITUB indicates that the minimum wage proposed by the Council of Ministers does not meet the minimum needs of workers and their families; (ii) the BIA indicates that the criteria for determining the level of the minimum wage provided for in the Convention, in particular the economic factors, have not been clearly respected in practice and that the increase in minimum and average wages lags significantly behind labour productivity; (iii) the BCCI indicates that the Government does not make any effort to link minimum wage adjustments to objective criteria, that the evolution of the minimum wages significantly outpaced the rate of labour productivity in recent years, and that despite the meetings and consultations held with the social partners, no specific actions have been taken in order to develop a mechanism for determining the level of the minimum wage; and, (iv) the BICA and the UPEE agree with the information submitted by the Government. Based on the above, the Committee observes that there are divergences between the Government, on the one side, and the CITUB, the BIA and the BCCI, on the other, concerning the criteria reportedly taken into consideration in determining the level of the national minimum wage. The Committee accordingly requests the Government to communicate its comments in reply to the above-mentioned observations, providing more detailed information on the manner in which the needs of workers and their families as well as relevant economic factors are taken into consideration, in full consultation with social partners, in determining the level of the minimum wages in the country.