Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee has noted the Government’s reply to its earlier comments.

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 an obligation to perform labour, pursuant to section 167-1 of the Code on Administrative Offences and section 342 of the Criminal Code. Section 167-1 of the Code on Administrative Offences makes such violation punishable with a fine or administrative arrest for a term of up to 15 days (which involves an obligation to perform labour, in accordance with section 306 of the same Code). Section 342 of the Criminal Code provides for sanctions of imprisonment or limitation of freedom for the "organization of group actions violating public order" (both sanctions involve compulsory labour, in accordance with sections 50(1) and 98(1) of the Execution of Penal Sentences Code, 2001).

The Committee has taken due note of the Government’s indications concerning the application of the above provisions in practice, as well as of the annexed copy of the court decision on the case of Mr. Bukhvostov, a chairperson of the Belarus Automobile and Agricultural Machinery Workers’ Union, who was arrested when he carried out a one-man protest in the prominent public square in violation of the above section 167-1 of the Code on Administrative Offences and was subsequently convicted by the Minsk Central District Court to administrative detention for a term of ten days. The Committee has also taken note of the findings of the Commission of Inquiry established at the 288th Session of the Governing Body (November 2003) to examine a complaint presented under article 26 of the ILO Constitution alleging the failure of the Government of Belarus to observe Conventions Nos. 87 and 98, in which the Commission observed, with regard to the administrative detention of Mr. Bukhvostov, that the application of the above provisions gave rise to a serious breach of Mr. Bukhvostov’s civil liberties.

The Committee has also taken note of the Government’s view expressed in the report that sections 167-1 and 342 referred to above do not provide for punishment for holding or expressing political views or ideological convictions. It refers in this connection to the explanations contained in paragraphs 133-140 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that, "since opinions and views ideologically opposed to the established system are often expressed in various kinds of meetings, the prohibition of specific categories of meetings may give rise to political coercion involving sanctions contrary to the Convention". The Committee always made it clear that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence, but if sanctions involving compulsory labour enforce a prohibition of the expression of views or of opposition to the established political, social or economic system, such sanctions fall within the scope of the Convention.

While having duly noted the Government’s indication in the report that, in the case of Mr. Bukhvostov, the convict was not assigned any physical labour during the administrative detention, the Committee expresses the hope that measures will be taken to amend the 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 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 167-1 of the Code on Administrative Offences and section 342 of the Criminal Code, including copies of the court decisions and indicating the penalties imposed.

Article 1(c). Sanctions involving compulsory labour as a punishment for breaches of labour discipline. In its earlier comments, the Committee referred to section 428(1) of the Criminal Code, under which the non-performance or improper performance by an official of his duties as the result of a negligent attitude, causing substantial harm or other grave consequences to legitimate rights and interests of persons or to state interests, is punishable by imprisonment or limitation of freedom, which involves compulsory labour. The Committee pointed out, referring to paragraphs 110 to 116 of its General Survey of 1979 on the abolition 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 Government indicates in its report that there is no provision for compulsory enlistment to public or corrective works under this section of the Criminal Code. However, the Committee has noted that section 98(1) of the Execution of Penal Sentences Code, 2001, provides for the obligation of prisoners to work at the enterprises determined by the administration of correctional institution, the refusal to work being punishable with sanctions. Section 50(1) provides for a similar obligation with regard to convicts serving a term of limitation of freedom.

The Committee therefore expresses the 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 the same section), in order to bring legislation into conformity with the Convention on this point. Pending the adoption of such measures, the Committee again requests the Government to supply information on the application of section 428(1) in practice, including copies of the 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 noted the Government’s indication that section 342 of the Criminal Code, which provides for sanctions of imprisonment or limitation of freedom (involving compulsory labour) 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 recalled, referring also to paragraphs 122 and 123 of its General Survey of 1979 on the abolition of forced labour, that, in order to be compatible with the Convention, restrictions on the right to strike enforced with sanctions involving compulsory labour must be limited in scope to the situations of force majeure or to essential services in the strict sense of the term (namely, those whose interruption would endanger the life, personal safety or health of the whole or part of the population).

Having duly noted the Government’s statement in the report that, under the legislation, there is no penal liability for participation in strikes and that penal sanctions can only be applied to a worker who has committed a crime in the course of a strike, the Committee again requests the Government to supply information on the application of sections 310 and 342 in practice, including copies of the relevant court decisions defining or illustrating their scope and indicating the penalties imposed.

Referring also to its 2004 observation under Convention No. 87, particularly as regards the need to repeal certain restrictions relevant to industrial action, the Committee requests the Government 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 participation in strikes.