Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Abolition of Forced Labour Convention, 1957 (No. 105) - Ukraine (Ratification: 2000)

Other comments on C105

Observation

Direct Request

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Article 1(a) and (c) of the Convention. Sanctions involving compulsory labour as a punishment for holding or expressing political views and labour discipline. Referring to its previous comments, the Committee takes due note of the information provided by the Government on the nature of the sanctions that may be imposed for liability for certain offences regarding the Act on political parties. It notes in particular that section 112 of the Code of Administrative Offences only provides for penalties in the form of fines. It notes also the information on the legislation in force regulating the service conditions on board merchant shipping vessels.

Article 1(c). Sanctions for violation of labour discipline. The Committee previously noted that, under section 367-1 of the Criminal Code, the non-performance or the improper performance by officials of their duties due to negligence, resulting in substantial damage to the legitimate rights and interests of persons, state or public interests, is punishable with a fine or correctional labour or the limitation of freedom (which involves compulsory labour, by virtue of section 61(1) of the Criminal Code). If the same act has grave consequences, it shall be punished with imprisonment (section 367-2). In this respect, the Committee noted the significant decrease in the use of section 367 of the Criminal Code (from 1,581 convictions in 2011 to 319 convictions in 2015), and requested the Government to continue to provide information on the scope of application of section 367 in order to ascertain that this provision was not used as a means of labour discipline.

The Committee notes that the Government emphasizes that section 367 does not solely criminalize the breach of labour discipline, but that relevant actions must also have resulted in significant harm. In this context, the Committee notes, from the statistics provided by the Government, that the number of convictions under section 367 of the Criminal Code further decreased to 42 in 2019, resulting in two persons being imprisoned and no correctional labour or the limitation of freedom applied as a sanction. The Committee observes, concerning the execution of sentences of imprisonment that, pursuant to section 118(5) of the Execution of Penalties Code, convicts may be involved for up to two hours a day in the improvement of detention facilities, as well as the improvement of living conditions of convicts or in ancillary work to provide detention facilities with food. Moreover, pursuant to section 118(2) of that Code, convicts sentenced to imprisonment who have debts under executive documents are obliged to work as determined by the administration of the prison, until such debts are paid.

The Committee takes due note of the further decrease in the use of section 367 of the Criminal Code, the absence of correctional labour or the limitation of freedom applied as a sanction, and the imprisonment of two convicts under this section in 2019. The Committee recalls that it has considered that the Convention does not prohibit the imposition of sanctions (even involving compulsory labour) on persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of essential services, or which are committed either in the exercise of functions that are essential to safety or in circumstances where life or health are in danger. However, in such cases there must exist an effective danger, not mere inconvenience (see paragraph 175 of the 2007 General Survey on the eradication of forced labour and paragraph 310 of the 2012 General Survey on fundamental Conventions).

In order to ascertain that section 367 of the Criminal Code is not used as a means of labour discipline within the meaning of the Convention, as explained above, the Committee requests the Government to continue to provide information on the number of prosecutions, convictions and penalties applied under section 367 of the Criminal Code. In this regard, it requests the Government to provide information describing the facts that have motivated such convictions so as to allow the Committee to examine the manner in which the notion of “substantial damages” in section 367 is interpreted by the Courts.

Article 1(d). Sanctions for participation in strikes. In its previous comments, the Committee noted that pursuant to section 293 of the Criminal Code, a sanction of imprisonment of up to six months (which may involve compulsory labour) may be imposed for organized group action violating public order, or resulting in disturbances of the operation of transport or work of enterprises, institutions or organizations. It noted from the statistics provided by the Government that from 2011 to 2015, five judicial decisions were handed down under section 293, two of which led to convictions. It requested the Government to continue to provide information on the application of this provision to assess its compatibility with the Convention.

The Committee notes that, according to the statistics provided by the Government, in 2019, 22 judicial decisions were handed down under section 293 of the Criminal Code, one of which led to a case of detention. However, the Government has not indicated whether this case was related to the participation in a strike. The Committee recalls that sentences of imprisonment may involve the compulsory participation in labour according to sections 118-2 and 118-5 of the Execution of Penalties Code and section 52 of the Criminal Code. Referring also to its 2012 General Survey, paragraph 313, the Committee once again recalls that the Convention lays down a general prohibition to have recourse to any form of compulsory labour as a punishment for having participated in strikes. However, the Convention does not prohibit the punishment of breaches of public order (acts of violence, assault or destruction of property) committed in connection with the strike; any sanctions (even involving compulsory labour) for offences of this kind obviously fall outside of the scope of the Convention. The Committee requests the Government to continue to provide detailed information on the application of section 293 of the Criminal Code in practice, indicating whether any of the convictions pronounced involved participation in strike action. The Committee requests the Government to ensure that no sanction involving compulsory labour can be imposed for the mere fact of peaceful participation in a strike. The Committee also refers in this regard to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).