Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee has noted the Government’s report, including the information supplied in response to the Committee’s general observation of 2000 concerning measures to prevent, suppress and punish trafficking in persons for the purpose of exploitation.

Article 1 and Article 2(1) of the Convention

1. Freedom of career military servicemen to leave their service. In its earlier comments, the Committee noted that, under section 26 of the Act on universal conscription and military service and point 59.7 of the Regulations respecting the military service of officers (Order No. 360 of 1993 of the Minister of Defence), career military officers may be discharged from service at their own request if their family situation and other circumstances prevent them from performing their military duties. According to the Government’s explanations in its previous report received in 2000, the discharge from service under these provisions is possible only on compassionate grounds, when there are good reasons preventing the officers from military service, like for example serious illness of children or near relatives, the need of taking continuous care of them, removal to their place of residence, etc. It logically follows from these explanations that in the absence of such good reasons the discharge of officers at their own request is not possible.

Referring to paragraphs 33 and 72 of its General Survey of 1979 on the abolition of forced labour, the Committee recalled that career military servicemen who have voluntarily entered into an engagement may not be denied the right to leave the service in peacetime within a reasonable period, either at specified intervals or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service. Since the Government’s latest report contains no new information on this subject, the Committee reiterates its hope that appropriate measures will be taken with a view to amending the existing legislation in order to ensure compliance with the Convention on this point and that the Government will provide, in its next report, information on measures taken or envisaged to this end.

2. In its earlier comments, the Committee noted the provision in the national legislation according to which the payment of unemployment benefits is suspended in the event that an unemployed person fails, without a valid reason, to carry out a monthly standard of participation in paid public works assigned by the State employment service (section 18-1, point 2, of the revised Act on Employment of Population, of 6 January 1999). The Committee also noted the Government’s repeated statement that, under section 9.1 of the Act on Employment of Population, participation in paid public works does not constitute an obligation on the part of unemployed persons. Referring also to the Government’s indication in its previous report that the organization of public works and participation therein is regulated by Decree No. 488 of 8 April 1999 of the Council of Ministers with respect to the organization and implementation of public works, the Committee again requests the Government to supply a copy of this Decree, as well as information on its application in practice.

Article 2(2)(c). The Committee previously noted that employment of prisoners for private enterprises outside prison premises is allowed in accordance with the legislation in force, and that private parties are entitled to conclude contracts on the use of labour of prisoners with the administration of a correctional institution. The Committee has noted the provisions of the new Execution of Penal Sentences Code, 2001, concerning the obligation of convicts to work at the enterprises determined by the administration of correctional institution, including private ones, the refusal to work being punishable with sanctions (section 98 of the Code). It has also noted that conditions of work of convicts are established in accordance with the labour legislation of Belarus and their wage rates shall not be lower than those established by the labour legislation for the performance of corresponding types of work (sections 99 and 100 of the same Code).

The Committee recalls again that under Article 2(2)(c) of the Convention work or service exacted from any person as a consequence of a conviction in a court of law is excluded from the scope of the Convention if two conditions are met, namely: "… that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations".

The Committee has always made it clear that the two conditions are cumulative and apply independently, i.e. the fact that the prisoner remains at all times under the supervision and control of a public authority does not in itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private individuals, companies or associations (see paragraph 119 of the Committee’s General Report to the 89th Session of the International Labour Conference, 2001).

As the Committee repeatedly pointed out, work for private companies can be compatible with the Convention only where prisoners work in conditions approximating a free employment relationship; this necessarily requires the voluntary consent of the prisoner as well as further guarantees and safeguards covering the essential elements of a free employment relationship, such as wages and social security (see paragraphs 97-99 of the Committee’s General Survey of 1979 on the abolition of forced labour, paragraphs 122-125 of its General Report submitted to the 86th Session of the International Labour Conference (1998) and paragraphs 82-146 of its General Report submitted to the 89th Session of the International Labour Conference (2001)).

The Committee therefore again requests the Government to indicate whether and how the consent of the prisoners to work for private enterprises is obtained. Please also supply copies of contracts concluded between a private company and the administration of a correctional institution and of any contracts between prisoners and companies.