Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Abolition of Forced Labour Convention, 1957 (No. 105) - Belarus (Ratification: 1995)

Other comments on C105

Observation

Direct Request

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Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of views opposed to the established political, social or economic system. The Committee previously noted that violation of provisions governing the procedure of organization and holding of assemblies, meetings, street marches, demonstrations and picketing, established by the Law of 30 December 1997, is punishable with sanctions which may involve compulsory labour, pursuant to the provisions of the Criminal Code and the Code on Administrative Offences. It noted, in particular, that section 342 of the Criminal Code punishes the “organization of group actions violating public order” with sanctions of imprisonment or limitation of freedom (both sanctions involve compulsory labour, in accordance with sections 50(1) and 98(1) of the Execution of Penal Sentences Code, 2001). The Committee notes from the Government’s report that section 23.34 of the Code on Administrative Offences of 21 April 2003, No. 194-3, punishes violation of provisions governing the procedure of organization and holding of assemblies, meetings, street marches, demonstrations and picketing with a warning, a fine or administrative arrest. According to the report, a procedure for performing labour by persons sentenced to administrative arrest is laid down in section 18.8 of the Execution of the Administrative Offences Code, 2006.

The Government states in its report that the Law of 30 December 1997 referred to above makes punishable violation of provisions governing the procedure of organization and holding of assemblies, meetings, street marches, demonstrations and picketing, but not participation in such actions. While noting this statement, the Committee points out, referring also to the explanations contained in paragraphs 152 and 162 of its 2007 General Survey on the eradication of forced labour, that, since opinions and views ideologically opposed to the established system are often expressed in various kinds of meetings, certain restrictions and prohibitions affecting meetings and gatherings (including various procedural requirements restricting the organization and conduct of such events) may give rise to political coercion and, in so far as they are enforceable with sanctions involving compulsory labour, they fall within the scope of the Convention.

The Committee notes the Government’s indications concerning the application of the above provisions in practice. It notes, in particular, that there have been 111 court decisions under section 23.34 of the Code on Administrative Offences, in ten cases the offenders have been sentenced to administrative arrest. There have been no criminal cases tried under section 342 of the Criminal Code.

The Committee also notes the Government’s indication in the report that persons sentenced to administrative arrest for violation of provisions governing the procedure of organization and holding of assemblies, meetings, street marches, demonstrations and picketing are assigned to work with their consent. The Committee would appreciate it if the Government would provide, with its next report, a copy of section 18.8 of the Execution of the Administrative Offences Code, 2006, governing labour of persons sentenced to administrative arrest, as well as any other provisions requiring that such persons give their voluntary consent to perform labour.

The Committee hopes that measures will be taken to amend the penal provisions referred to above in order to ensure, both in law and in practice, that no penalties involving compulsory labour may be imposed for the expression of political views opposed to the established system, e.g. by clearly restricting the scope of these provisions to the situations connected with the use of violence or incitement to violence, or by repealing sanctions involving the obligation to work. Pending the amendment, the Committee requests the Government to continue to provide information on the application in practice of the abovementioned section 342 of the Criminal Code, including sample copies of the court decisions and indicating the penalties imposed.

Article 1(c). Penal sanctions involving compulsory labour for breaches of labour discipline in the public service. In its earlier comments, the Committee referred to section 428(1) of the Criminal Code, under which the non-performance or improper performance by public officials of their duties as the result of a negligent attitude, causing a particularly large scale damage or substantial harm to legitimate rights and interests of persons or to State interests, is punishable by imprisonment or limitation of freedom (which involves compulsory labour, as explained above). The Committee pointed out, referring also to the explanations in paragraphs 175–178 of its 2007 General Survey on the eradication of forced labour, that only sanctions relating to breaches of labour discipline that impair or are liable to endanger the operation of essential services or which are committed in the exercise of functions which are essential to safety or in circumstances where life or health are in danger, are not covered by the Convention.

The Committee notes the Government’s indications concerning the application of section 428(1) in practice. It notes, in particular, that there have been 17 court decisions under this section during the reporting period, in three cases the offenders have been sentenced to limitation of freedom and in six cases to imprisonment. The Committee also notes the Government’s explanations concerning the notion of a “particularly large scale damage or substantial harm” to legitimate rights and interests of persons or to State interests used in this section.

The Committee reiterates its hope that measures will be taken to amend section 428(1), e.g., by restricting its scope to essential services in the strict sense of the term or to acts which are committed in the exercise of functions which are essential to safety or in circumstances where life or health are in danger (as it is stipulated in paragraph (2) of section 428), or by repealing sanctions involving the obligation to work, in order to bring legislation into conformity with the Convention on this point. Pending the adoption of such measures, the Committee requests the Government to continue to supply information on the application of section 428(1) in practice, including sample copies of the relevant court decisions and indicating the penalties imposed.

Article 1(d). Sanctions involving compulsory labour as a punishment for participation in strikes. In its earlier comments, the Committee referred to section 397 of the Labour Code, under which participants in a strike deemed unlawful by a court of law may be held liable pursuant to disciplinary and other procedures prescribed by law. The Committee previously noted that section 342 of the Criminal Code, which provides for sanctions of imprisonment or limitation of freedom (involving compulsory labour, as explained above) for the organization of group actions violating public order and resulting in disturbances of operation of transport or work of enterprises, institutions or organizations, as well as section 310(1) of the Criminal Code, which provides for similar sanctions for the intentional blocking of transport communications, are applicable to participants in unlawful strikes.

The Committee has duly noted the Government’s repeated statements in its reports that, under section 397 of the Labour Code referred to above, there is no penal liability for participation in strikes as such, but only for participation in unlawful strikes, and that under sections 310 and 342 of the Criminal Code penal sanctions can only be applied to a worker who has committed a crime in the course of a strike, such as serious violation of public order or violent acts endangering persons’ life or health or causing particularly large scale damage. The Committee recalls in this connection, referring also to the explanations contained in paragraph 189 of its 2007 General Survey on the eradication of forced labour, that, regardless of the legality of the strike action in question, any sanctions imposed should not be disproportionate to the seriousness of the violations committed, and that no penal sanctions should be imposed upon a worker for the mere fact of peaceful participation in a strike.

The Committee therefore expresses the firm hope that the Government will soon be in a position to indicate the measures taken or envisaged to ensure, both in law and in practice, that sanctions involving an obligation to work cannot be imposed for the mere fact of peaceful participation in strikes. Pending the adoption of such measures, and noting also the Government’s indication that no criminal cases have been tried under sections 310 and 342 of the Criminal Code, the Committee again requests the Government to supply information on the application in practice of sections 310 and 342 to participants in unlawful strikes, as soon as such information becomes available, including copies of the relevant court decisions and indicating the penalties imposed.