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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Belarus (RATIFICATION: 1956)

Other comments on C087

Observation

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The Committee takes note of the observations of the Belarus Congress of Democratic Trade Unions (BKDP), received on 24 and 31 August 2023, and of the International Trade Union Confederation (ITUC), received on 27 September 2023, referring to matters addressed in this comment.

Follow-up to the recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

The Committee notes the Resolution concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Belarus, adopted at the 111th Session (June 2023) of the International Labour Conference. The Committee notes that the Conference urged the Government of Belarus to receive as a matter of urgency an ILO tripartite mission with a view to gathering information on the implementation of the recommendations of the Commission of Inquiry and subsequent recommendations of the supervisory bodies of the ILO, including a visit to the independent trade union leaders and activists in prison or detention. The Committee further notes that at its 349th Session (October-November 2023), the Governing Body discussed the follow-up to the Conference resolution (see GB.349/INS/13(Rev.1)) and urged the Government to do the same.

The Committee recalls that in its previous comments it expressed deep concern regarding the situation of civil liberties in Belarus and the application of the Convention in law and in practice, and had urged the Government to take a number of measures to address them. At the outset, the Committee notes with deep regret that in its report, the Government once again merely reiterates the information it had previously provided and considers that the Committee misunderstands and misinterprets the situation on the ground.

Civil liberties and trade union rights. The Committee recalls that it urged the Government to immediately release all trade union leaders and members arrested for participating in peaceful assemblies or for exercising their civil liberties pursuant to their legitimate trade union activities, and to drop all related charges. The Committee also urged the Government to provide detailed information concerning the situation of these trade unionists, including charges brought against them, and give access, as a matter of urgency, to visitors, including officials of the ILO, to ascertain the conditions of arrest and detention and the welfare of the above-mentioned persons. If, in the meantime, any of the above trade unionists had been brought to court, the Committee urged the Government to provide information on the outcome of any proceedings against them and to communicate copies of any court decisions issued in their cases.

The Committee notes with deep concern the list of 47 trade union leaders and activists currently detained or whose freedom of movement is restricted, transmitted by the BKDP. The Committee further notes with deep concern the deteriorating conditions of imprisonment of the BKDP chairperson, Mr Aliaksandr Yarashuk. After a four-year prison sentence to a general regime colony was issued in December 2022, Mr Yarashuk was transferred to a strict regime prison where he is kept in a cell nearly all the time, with only the right to take short walks in the yard, while other normal prison privileges, such as telephone calls and visits from relatives, are reduced. The Committee also notes with deep concern the information provided by the ITUC to the Governing Body at its 349th Session to illustrate the conditions in which trade unionists were detained. The ITUC also indicates that while several trade union leaders arrested in April 2022 have been released, they still face charges. The ITUC further alleges that over the past months, throughout the country, police have proceeded with mass arrests and the detention of employees, deemed “disloyal to the regime“. The ITUC also refers to an instruction issued by the Belarus authorities to its embassies not to renew passports of Belarusian citizens abroad, in order to force them to return to the country and face persecution.

The Committee notes the Government’s indication that it had repeatedly drawn attention to the lack of grounds and outright absurdity of allegations that the country’s trade unions and citizens were persecuted for carrying out trade union activities and legally and peacefully exercising civil rights and liberties. According to the Government, the ILO is being misled by the complaints of politically motivated individuals and organizations, and therefore continues to erroneously assume that the 2020 protests were motivated by economic and social considerations, were lawful and peaceful, and were directed at protecting civil and trade union rights and liberties. The Government insists that purely political events, unrelated to the processes of social dialogue in the workplace and the exercise of trade union rights, should not serve as a basis for assessing compliance with the Convention and should not be considered when monitoring the implementation thereof. The 2020 protests were artificially encouraged by outside forces, were unlawful and intended to seize power by unconstitutional means. The protestors’ demands (the resignation of the Head of State, fresh elections, exoneration of law breakers) had nothing to do with the protection of citizens’ labour, social and economic interests or the tasks that trade unions are bound to perform. The Government considers that the authors of the complaints deliberately brought political issues to the ILO in order to discredit Belarus internationally, justify unprecedented unilateral restrictive measures against the country, escalate political pressure on the legitimate authorities and launch another wave of sanctions based on ILO decisions. The Government reiterates that all citizens and trade unions referred to in the complaints and comments of the ILO supervisory bodies had been prosecuted for specific unlawful acts not connected with the lawful and peaceful exercise of trade union rights and freedoms. Thus, all calls for the dismissal of all charges against them and their immediate release had no objective legal basis. The review of sentences, interaction with the convicted persons and their release from custody falls within the exclusive competence of law enforcement agencies and courts, interference in the activities of which is inadmissible and entails liability in accordance with the law. In this regard, and with reference to the above-mentioned list of detained trade unionists, the Government indicates that this was yet another attempt to convince the ILO of the alleged persecution of “independent” trade unions in order to escalate pressure on Belarus. The Government recalls that the activities of the BKDP and its member organizations were terminated by Supreme Court decisions on the basis that they contradicted the national Constitution and other legislation, and caused harm to the State or public interests. The Government indicates that six of the 47 persons listed as prisoners have already served their respective sentences and that four of them have not even been sent to correctional institutions. Regarding another 13 individuals (Ms Mikhniuk, Ms Britikova, Mr Yarashuk and Mr Antusevich (who was released after serving the entire sentence and after the receipt of the Government’s report), Mishuk, Khanevitch, Zhernak, Berasneu, Fiadynich, Areshka, Gromov, Chichmarev and Sliazhou), the Government indicates that these citizens had been found guilty of committing specific serious offences. The Government further indicates that ten persons from the list were members of a group “Rabochy Rukh” (“Workers’ movement”), an extremist formation, the activities of which are prohibited. In view of the gravity of the offences committed (creation and/or participation in an extremist formation, treason against the State, slander, unlawful acts with firearms, ammunition and explosives, and so forth), these citizens were sentenced to longer periods of deprivation of liberty. Other citizens on the list had been prosecuted for specific unlawful acts such as gross violation of public order resulting in disruption of transport and enterprise operations; violence against internal affairs officers; calls for actions aimed at harming national security; incitement to national or social enmity and discord on the grounds of national and social affiliation; and incitement to ethnic or social hatred and discord on the grounds of national or social origin. The Government points out that these acts are unrelated to the lawful and peaceful exercise of trade union activities, civil or other rights and freedoms. According to the Government, in the vast majority of cases, the sentences imposed on them did not exceed three years. Four persons were serving their sentences (restriction of liberty) at their place of residence, and two persons were serving their sentences in open-type correctional institutions.

The Committee deplores the Government’s unwillingness to take steps for the release of the detained trade union leaders and members. The Committee further deplores that on the one hand the Government reiterates that trade unionists had been prosecuted for specific unlawful acts not connected with the lawful and peaceful exercise of trade union rights and freedoms and, on the other, it fails to provide a copy of the judicial decisions as previously requested by the Committee. The Committee once again requests the Governmentto communicate copies of court decisions issued in their cases.

The Committee further recalls that for a number of years the ILO supervisory bodies, including this Committee, have been drawing the Government’s attention to the International Labour Conference 1970 resolution concerning trade union rights and their relation to civil liberties, which emphasizes that the rights conferred upon workers’ and employers’ organizations must be based on respect for civil liberties, as their absence removes all meaning from the concept of trade union rights. With reference to its previous comments and the 402nd Report (March 2023) of the Committee on Freedom of Association (CFA) on Measures taken by the Government of the Republic of Belarus to implement the recommendations of the Commission of Inquiry, the Committee considers that the failure of the Government to acknowledge, address and redress very serious allegations of violation of civil liberties or to act on the repeated specific requests of the ILO supervisory bodies, including those made by this Committee, reinforces the reality of wilful Government non-compliance with its obligations stemming from its membership in the Organization. In these circumstances, the Committee reiterates its previous request to immediately release all trade union leaders and members arrested for participating in peaceful assemblies or for exercising their civil liberties pursuant to their legitimate trade union activities, and to drop all related charges. The Committee urges the Government to receive without further delay an ILO tripartite mission with a view to gathering information on the implementation of the recommendations of the Commission of Inquiry and subsequent recommendations of the supervisory bodies of the ILO, including a visit to the independent trade union leaders and activists in prison or detention.

Application of the Convention. The Committee recalls that the outstanding issues of the application of the Convention relate to the following concerns: (1) right to establish workers’ organizations, which includes the issue of legal address and the right, in practice, to form trade unions outside the Federation of Trade Unions of Belarus (FPB); (2) the right of workers’ organizations to receive and use foreign gratuitous aid (funding obtained from abroad); (3) the right, in law and in practice, to demonstrate and hold mass events; (4) the right to strike; (5) consultation with organizations of workers and employers; and (6) labour disputes resolution system. The Committee observes with deep regret the absence of information on the concrete measures taken by the Government to give effect to the Committee’s previous requests aimed at addressing these concerns. Instead, the Government merely reiterates the information it has previously provided and points to a lack of contradiction between national law and practice and the Convention. The Committee is therefore bound once again to urge that the Government take measures to amend without further delay Decree No. 3 (on receiving and using foreign gratuitous aid), the Law on Mass Activities and the accompanying Regulation, as well as section 342-2, 369, 369-1 and 369-3 of the Criminal Code providing for restrictions on mass events and associated penalties, in order to bring them into compliance with the Government’s international obligations regarding freedom of association. It also once again urges the Government to take measures to revise sections 388(1), (3) and (4), 390, 392 and 393 of the Labour Code restricting the right to strike; as well as section 42(7), which expressly allows an employer to dismiss or terminate a labour contract with a worker who is absent from work in connection with serving an administrative penalty in the form of an administrative arrest; who forces other workers to participate in a strike or calls on other workers to stop performing work duties without sound reason; or who participates in an illegal strike or other forms of withholding labour without sound reasons. The Committee expects the Government to provide information on all steps taken in this regard.

In its previous comment, the Committee deplored the effect of the dissolution of the BKDP on the work of the National Council on Labour and Social Issues (NCLSI) and of the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere (the tripartite Council). In this respect, the Committee noted that with the dissolution of the BKDP, the only representation of workers’ voice in these structures was now the Federation of Trade Unions of Belarus (FPB), which enjoyed the publicly expressed support from State authorities at the highest level, and whose independence from the authorities was questionable. In these circumstances, the Committee questioned the continuing legitimacy of the NCLSI and the tripartite Council. Considering that the development of free and independent organizations and their involvement in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation, the Committee urged the Government to take steps to review the situation of the dissolved trade unions in this light so as to ensure that they may again function.

The Committee notes the Government’s indication that the tripartite Council resumed its work in 2023 and had two meetings (on 26 May, to consider the recommendation of the CFA regarding a non-judicial mechanism for settling labour disputes and at which it was decided to establish an expert group from among its members to examine communications from trade unions and employers’ organizations; and on 22 September, to consider information provided by the ILO on the right to strike and the interpretation of the Convention, as well as the issue of collective bargaining at various levels of social partnership). The Government further informs that the NCLSI also met twice: on 14 April 2023, to consider the implementation of the General Agreement (2022–2024) and the implementation of a set of measures to reduce the shortage of workers in 2022–2023 and on 26 July 2023, to discuss regulation of the crisis management mechanism to aid the financial recovery of insolvent organizations and the situation of the consumer market. While noting the above information, the Committee notes with deep concern the absence of any measures taken to review the situation of the dissolved trade unions so as to ensure that they may again function and fully participate in national tripartite bodies. The Committee reiterates in the strongest terms its previous requests and expects the Government to indicate concrete steps taken to that end.

The Committee notes that Law No. 225-Z of 12 December 2022 on Employers’ Associations will enter into force on 16 December 2023. The Committee notes that the Law provides for the notion of a “confederation of employers of the Republic of Belarus”, defined as the most representative employers’ organization. The Committee observes that two employers’ organizations are currently members of the tripartite Council and are signatories of the General Agreement. The Committee requests the Government to indicate the impact of the certification of one employers’ organization as confederation under the Law on the membership of the tripartite Council.

The Committee deplores the total lack of progress in implementing the recommendations of the 2004 Commission of Inquiry and in addressing the outstanding recommendations of the ILO supervisory bodies, as well as the continuing deterioration of freedom of association in the country. The Committee once again urges the Government to engage with the ILO with a view to fully implementing all outstanding recommendations of the ILO supervisory bodies without further delay.

The Committee notes that in its resolution, the International Labour Conference decided to hold at its future sessions a special sitting of the Committee on the Application of Standards for the purpose of discussing the application of the Convention by the Government and the implementation of the recommendations of the Commission of Inquiry, so long as the Government has not been shown to have fulfilled its obligations.