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

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The Committee notes the observations of the Belarusian Congress of Democratic Trade Unions (BKDP), received on 30 August 2021 and 14 January 2022, and requests the Government to provide its reply to these observations.

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of political views or views opposed to the established political, social or economic system. The Committee previously requested the Government to amend or repeal sections 193(1) (participation in the activities of unregistered groups), 339 (hooliganism and malicious hooliganism), 342 (organization of group actions violating public order), 367 (libelling the President), 368 (insulting the President) and 369(2) (violation of the procedure for the organization or holding of assemblies, meetings, street marches, demonstrations and picketing) of the Criminal Code to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views or views ideologically opposed to the established political, social or economic system.

The Committee notes that according to the information provided by the Government, in its report, section 193(1) of the Criminal Code was repealed. The Government further indicates that there is no linkage between crimes punishable under sections 339, 342, 367, 368 and 369(2) of the Criminal Code and the peaceful expression of political views or views by citizens that are ideologically opposed to the established political, social and economic system.

The Committee notes that according to the 2020 Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Belarus in the context of the 2020 presidential election, criminal charges were increasingly brought in the context of protests. Between 9 August and 30 November 2020, more than 1,000 criminal cases were opened against peaceful protesters, opposition members and supporters, journalists, human rights defenders, lawyers and persons critical of the Government. The overwhelming majority of criminal charges against protesters were brought under section 342 (organization of group actions violating public order) of the Criminal Code; section 293 (organization of or participation in mass riots), punishable by up to eight years of imprisonment; section 339.2 (hooliganism and malicious hooliganism); and various charges for resistance to and violence against law enforcement officers. Charges were also brought for “insulting State officials”, including by comments posted on social media, and for “insulting the flag and national symbols” (A/HRC/46/4, paragraphs 43–45). The Committee notes the BKDP’s observations that as of 14 November 2021, 843 people in Belarus were considered political prisoners and more than half of them were in institutions where prisoners are required to work.

The Committee also notes that, in its Opinion No. 50/2021, the United Nations Working Group on Arbitrary Detention concluded that the arrest and detention of a journalist under sections 130(3) (deliberate incitement to social hatred), 293(1), and 342 of the Criminal Code was arbitrary and based solely on his journalistic activity, and his freedoms of expression and assembly (A/HRC/WGAD/2021/50, paragraphs 5, 82 and 83). In addition, in its Opinion No. 23/2021, the United Nations Working Group on Arbitrary Detention concluded that the arrest and detention of the opposition candidate in the 2020 election under sections 130(3), 191(1) (obstruction of the exercise of electoral rights), 293(1) and 342(1) of the Criminal Code was arbitrary and the criminal proceedings were used to prevent a high-level political opponent expressing his views and participating in public life (A/HRC/WGAD/2021/23, paragraphs 61, 85 and 88).

The Committee deplores the use of various provisions of the Criminal Code to prosecute and convict persons who express their political views or views ideologically opposed to the established political, social or economic system, leading to penalties of the limitation of freedom, deprivation of freedom or imprisonment, all involving compulsory labour. The Committee therefore strongly urges the Government to take immediate and effective measures to ensure that, both in law and practice, no one who, in a peaceful manner, expresses political views or opposes the established political, social or economic system, can be sentenced to sanctions under which compulsory labour is imposed. The Committee once again requests the Government to amend or repeal sections 339, 342, 367, 368 and 369(2) of the Criminal Code by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. The Committee requests the Government to provide information on any progress made in this respect.

Article 1(d). Sanctions involving compulsory labour as a punishment for participation in strikes. The Committee notes the indication by the Government that participation of citizens in peaceful strikes or peaceful protests does not entail criminal liability, particularly under sections 310(1) (the intentional blocking of transport communications) and 342 (the organization of group actions violating public order and resulting in disturbances of operation of transport or work of enterprises, institutions or organizations) of the Criminal Code.

In this regard, the Committee noted in its 2021 comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) new detailed allegations of retaliation, including arrests and detentions of trade unionists and workers who participated in trade union led strike actions. The Committee further notes that in its conclusions of 2022, the Conference Committee on the Application of Standards noted with great concern and deeply regretted the numerous allegations of extreme violence to repress peaceful protests and strikes, and the detention, imprisonment and torture of workers while in custody following the presidential election in August 2020, as well as allegations regarding the lack of investigation in relation to these incidents.

The Committee notes with deep concern the information relating to the punishment of workers with sanctions involving compulsory labour for their peaceful participation in strikes. The Committee recalls that Article 1(d) of the Convention prohibits the use of any form of compulsory labour as a punishment for having participated in a strike. The Committee further reiterates that sections 310(1) and 342 of the Criminal Code are worded in broad terms and allow for sanctions involving compulsory labour, against the peaceful participation in assemblies, meetings, street marches, demonstrations and picketing.

The Committee urges the Government to take the necessary measures to ensure, both in law and practice, that no sanctions involving compulsory labour can be imposed for the mere fact of peacefully participating in strikes. It requests the Government to amend or repeal sections 310(1) and 342 of the Criminal Code by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence. The Committee also requests the Government to provide information on the application of sections 310(1) and 342 of the Criminal Code in practice, including relevant court decisions, indicating in particular the penalties applied.

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Article 1(c) of the Convention. Sanctions involving compulsory labour for breaches of labour discipline in the public service. In its previous comments, the Committee noted that pursuant to section 428(1) of the Criminal Code, 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 the legitimate rights and interests of persons or to state interests, was punishable by limitation of freedom for a period up to one year or imprisonment for a period up to two years, both sanctions involving compulsory labour. The Committee expressed its hope that the Government would take measures in order to amend section 428(1) 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 were essential to safety or in circumstances where life or health are in danger, as it was stipulated in section 428(2), or by repealing sanctions involving compulsory labour in order to bring its legislation in conformity with the Convention.

The Committee notes the Government’s statement in its report that, pursuant to Law No. 42-3 of 15 July 2009 on amendments and in addition to certain laws of the Republic of Belarus on matters of criminal responsibility and operational investigation, section 428 of the Criminal Code has been revised, penalizing failure or improper performance by officials of their duty, due to unfair or negligent attitude to services, which negligently causes human death or other grave consequences, or illegal disposal of destruction of state property resulting in damage on a large scale, including through its denationalization or privatization.

Article 1(d). Sanctions involving compulsory labour as a punishment for participation in strikes. In its previous 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 further noted that section 342 of the Criminal Code, which provides for sanctions of imprisonment or limitation of freedom, both 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, and that section 310(1) of the Criminal Code, which provides for similar penal sanctions for the intentional blocking of transport communications, are both applicable to participants in unlawful strikes. The Government indicated that since 2010, one sanction of imprisonment has been imposed under section 342, but none under section 310.

The Committee notes the Government’s repeated indication that, under section 397 of the Labour Code, there is no penal liability for participation in strikes as such, but only for participation in illegal strikes. The Government states that a strike may be recognized as illegal where the requirements of the Labour Code or other laws are violated, and also in cases where an actual threat is created to national security, public order, public health or the rights and freedoms of other persons. The Committee also notes the Government’s information that from 2014 to the first six months of 2016, no cases were brought before or examined by the courts under section 342 of the Criminal Code. The Committee requests the Government to provide information on any measures taken or envisaged to ensure, both in law and in practice, that no sanctions involving compulsory labour can be imposed for the mere fact of peacefully participating in strikes. It also requests the Government to continue providing information on the application in practice of sections 310 and 342 of the Criminal Code, including on relevant court decisions, indicating in particular the penalties applied.

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Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of political views or views opposed to the established political, social or economic system. The Committee previously noted that violations of the provisions governing the procedures for the organization or holding of assemblies, meetings, street marches, demonstrations and picketing, established by Law No. 114-3 of 30 December 2007 on mass activities, are punishable by sanctions of imprisonment or the limitation of freedom, for the “organization of group actions violating public order” (section 342 of the Criminal Code) which involve compulsory labour under sections 50(1) and 98(1) of the Criminal Enforcement Code. The Committee also noted the adoption of section 369(2) of the Criminal Code, under which a person sentenced to administrative arrest for violations of the provisions governing the procedure for the organization or holding of assemblies, meetings, street marches, demonstrations and picketing, as defined by the Law on mass activities (pursuant to section 18(8) of the Code of Executive Procedure relating to Administrative Offences), who commits the same violation within one year can now be sentenced to imprisonment for up to two years, involving compulsory labour.

The Committee further noted that several other provisions of the Criminal Code, which are enforceable with sanctions involving compulsory labour, are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views opposed to the established political, social or economic system, including:

• -section 193(1) of the Criminal Code, which provides that persons participating in the activities of unregistered groups may be sentenced to imprisonment, involving compulsory labour;
• -section 339 of the Criminal Code, which criminalizes “hooliganism” and “malicious hooliganism” and provides for sanctions of limitation of freedom, deprivation of freedom or imprisonment, all involving compulsory labour; and
• -sections 367 and 368 of the Criminal Code, which provide that persons “libelling the President” or “insulting the President” may be sentenced to limitation of freedom or imprisonment, both involving compulsory labour.

The Committee notes the Government’s repeated indication in its report that section 15 of the Law on mass events defines responsibility for the infringement of the established procedure for organizing and/or holding mass events, but not for participation in such events. The Government indicates that, according to section 18(8) of the Code of Executive Procedure relating to Administrative Offences, persons subject to administrative detention may be employed with their consent. The Committee also notes the Government’s information that, from 2014 to the first six months of 2016, no cases were brought before or examined by the courts under sections 193(1), 342, 367 and 369(2) of the Criminal Code. The Committee further observes the Report of the UN Special Rapporteur on the situation of human rights in Belarus of 21 April 2017 (A/HRC/35/40, paragraph 6) and the Report of the Committee on Political Affairs and Democracy of the Council of Europe of 6 June 2017 (Document 14333, paragraph 30) that law enforcement agents seem to avoid physical attacks and detention during the intervention in public activities and that the authorities act instead by dispensing administrative and financial penalties since 2016, despite the suppression of peaceful social protests in early 2017.

While taking due note of the change in practice in this regard, the Committee must express its concern at the unchanged laws that criminalize unregistered or unauthorized public activities, which may lead to penalties involving compulsory labour as a punishment for peaceful expression of views or of opposition to the established political, social and economic system. The Committee therefore urges the Government to amend or repeal the penal provisions referred to above (sections 193(1), 339, 342, 367, 368 and 369(2) of the Criminal Code), in order to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views or views ideologically opposed to the established system, for example by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. The Committee requests the Government to provide information on any progress made in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

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Article 1(c) of the Convention. Sanctions involving compulsory labour for breaches of labour discipline in the public service. In its previous comments, the Committee noted that pursuant to section 428(1) of the Criminal Code, 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 the legitimate rights and interests of persons or to state interests, was punishable by limitation of freedom for a period up to one year or imprisonment for a period up to two years, both sanctions involving compulsory labour. The Committee reiterated its hope that the Government would take measures in order to amend section 428(1) 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 were essential to safety or in circumstances where life or health are in danger, as it was stipulated in section 428(2), or by repealing sanctions involving compulsory labour in order to bring its legislation in conformity with the Convention.

The Committee notes the Government’s statement that, pursuant to Law No. 42-3 of 15 July 2009 on amendments and addition to certain laws of the Republic of Belarus on matters of criminal responsibility and operational investigation, section 428(1) of the Criminal Code has been removed. However, the Committee notes that it appears from the Criminal Code, as amended, that Law No. 42-3 of 15 July 2009 has removed sub-section (2) of section 428 and increased penalties provided for in sub-section (1) of section 428, which has not been removed. The Committee recalls that the compatibility of penal provisions imposing sanctions involving compulsory labour on persons responsible for breaches of labour discipline with the Convention can be ensured only by limiting the scope of such provisions to the operation of essential services in the strict sense of the term (that is services, the interruption of which may endanger the life, personal safety or health or the whole or part of the population), or to the exercise of functions which are essential to safety or to circumstances where the life or health of persons are endangered (2012 General Survey on fundamental Conventions, paragraph 311). The Committee once again expresses the firm hope that measures will be taken to amend section 428(1) of the Criminal Code, 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, or by repealing sanctions involving compulsory labour, in order to bring the national legislation into conformity with the Convention. Pending the adoption of such measures, the Committee requests the Government to continue to supply information on the application in practice of section 428(1) of the Criminal Code, including copies of relevant court decisions and indicating the penalties applied.

Article 1(d). Sanctions involving compulsory labour as a punishment for participation in strikes. In its previous comments, the Committee referred to section 397 of the Labour Code, under which participants in a strike deemed unlawful by a court law may be held liable pursuant to disciplinary and other procedures prescribed by law. The Committee further noted that section 342 of the Criminal Code, which provides for sanctions of imprisonment or limitation of freedom, both 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, and that section 310(1) of the Criminal Code, which provides for similar penal sanctions for the intentional blocking of transport communications, are both applicable to participants in unlawful strikes. The Committee expressed the firm hope that the Government would soon be in a position to indicate the measures taken or envisaged to ensure, both in law and in practice, that sanctions involving compulsory labour cannot be imposed for the mere fact of peaceful participation in strikes.

The Committee notes the Government’s repeated indication that, under section 397 of the Labour Code, there is no penal liability for participation in strikes as such, but only for participation in unlawful strikes. The Government adds that since 2010, one sanction of imprisonment has been imposed under section 342 of the Criminal Code, but none under section 310 of the Criminal Code. While noting the Government’s statement that under abovementioned sections 310 and 342, penal sanctions can only be applied in cases of gross violation of public order or deliberate obstruction of operation of transport causing significant loss, death or bodily harm, the Committee observes that both sections of the Criminal Code are worded in broad terms and penalize with sanctions involving compulsory labour the peaceful participation in assemblies, meetings, street marches, demonstrations and picketing. The Committee recalls the importance it attaches to the general principle that, in all cases and 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 sanctions involving compulsory labour should be imposed upon a worker for the mere fact of peaceful participation in a strike (2012 General Survey on fundamental Conventions, paragraph 315). The Committee therefore again expresses the firm hope that the Government will indicate the measures taken or envisaged to ensure, both in law and in practice, that no sanctions involving compulsory labour can be imposed for the mere fact of peacefully participating in strikes. In the meantime, the Committee requests the Government to continue to supply information on the application in practice of sections 310 and 342 of the Criminal Code, including copies of relevant court decisions and indicating the penalties applied.

[The Government is asked to reply in detail to the present comments in 2016.]

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Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of political views or views opposed to the established political, social or economic system. In its previous comments, the Committee noted that violations of the provisions governing the procedures for the organization or holding of assemblies, meetings, street marches, demonstrations and picketing, established by Law No. 114-3 of 30 December 2007 on mass activities, are punishable by sanctions of imprisonment or the limitation of freedom, for the “organization of group actions violating public order” (section 342 of the Criminal Code), or with an administrative arrest (section 23.34 of the Code on Administrative Offences). The Committee noted that sanctions of imprisonment or limitation of freedom, as provided for in section 342 of the Criminal Code, both involve compulsory labour (sections 50(1) and 98(1) of the Criminal Enforcement Code). The Committee expressed the hope that measures would be taken to amend section 342 of the Criminal Code in order to ensure that no penalties involving compulsory labour may be imposed for the expression of political views.

The Committee notes the Government’s repeated indication in its report that section 15 of the Law on mass activities makes punishable violations of the provisions governing the procedures for the organization or holding of assemblies, meetings, street marches, demonstrations and picketing, but not participation in such actions. The Committee recalls 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. In so far as such restrictions and prohibitions are enforceable by sanctions involving compulsory labour, they are incompatible with the Convention. In this regard, the Committee refers to the discussions in the Conference Committee on the Application of Standards (CAS) in June 2013, 2014 and 2015 concerning the application by the Government of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and observes that, in its June 2015 conclusions, the CAS took note of the comments made by the Committee of Experts concerning the obstacles to the right to participate in peaceful demonstrations under the Law on mass activities and expressed deep concern that, ten years after the report of the Commission of Inquiry, the Government has failed to take measures to address most of its recommendations. In this regard, the Committee notes that, as highlighted by the report submitted to the Governing Body in March 2014 by the direct contacts mission which visited the country in January 2014, the Government has still not given consideration to recommendation No. 10, which requested it to amend the Law on mass activities (GB.320/INS/7). The Committee notes the Government’s indication that since 2010 only one judicial sentence under section 342 of the Criminal Code has been imposed. However, the Committee emphasizes with deep concern that no measure has been taken or envisaged to amend section 342 of the Criminal Code to ensure that no penalties involving compulsory labour may be imposed for the expression of political views opposed to the established system. The Committee further notes the adoption of section 369(2) of the Criminal Code, under which a person sentenced to administrative arrest for violations of the provisions governing the procedure for the organization or holding of assemblies, meetings, street marches, demonstrations and picketing, as defined by the Law on mass activities (pursuant to section 18.8 of the Procedural-Executive Code of Administrative Offences), who commits the same violation within one year can now be sentenced to imprisonment for up to two years, involving compulsory labour.

The Committee further notes that several other provisions of the Criminal Code, which are enforceable with sanctions involving compulsory labour, are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views opposed to the established political, social or economic system. In this regard, the Committee draws the Government’s attention to the following provisions:

• -section 193(1) of the Criminal Code, which provides that persons participating in the activities of unregistered groups may be sentenced to imprisonment, involving compulsory labour;
• -section 339 of the Criminal Code, which criminalizes “hooliganism” and “malicious hooliganism” and provides for sanctions of limitation of freedom, deprivation of freedom or imprisonment, all involving compulsory labour;
• -sections 367 and 368 of the Criminal Code, which provide that persons “libelling the President” or “insulting the President” may be sentenced to limitation of freedom or imprisonment, both involving compulsory labour.

The Committee observes that various reports of the United Nations and the European Union state that the above sections of the Criminal Code are often used by the Government to discourage criticism. In this regard, the Committee notes with deep concern that the United Nations Committee against Torture (CAT) and the United Nations Special Rapporteur on the situation of human rights in Belarus, as well as the European Parliament in its resolution of 10 September 2015 on the situation in Belarus, have expressed deep concern at the numerous and consistent allegations of serious acts of intimidation, reprisals and threats against human rights defenders and journalists, as well as cases of arbitrary detention involving compulsory labour for apparently political motives, including on suspicion of “hooliganism” or “malicious hooliganism”, more particularly in the period immediately preceding important political or social events (CAT/C/BLR/CO/4, A/HRC/26/44, A/HRC/29/43 and P8_TA-PROV(2015)0319). While taking due note of the release of six political prisoners on 22 August 2015, the Committee notes that the Government did not support any of the recommendations made in the framework of the Universal Periodic Review on 13 July 2015 concerning the review of cases of detention of individuals found to be deprived of their liberty for reasons which might be associated with the peaceful exercise of human rights and freedoms (A/HRC/30/3).

Noting that in Resolution 29/17 on the situation of human rights in Belarus, adopted on 26 June 2015, the Human Rights Council strongly urged the Government to put an immediate end to the arbitrary arrest, detention and harassment of human rights defenders, political opponents and journalists (A/HRC/RES/29/17), the Committee draws the Government’s attention to the fact that legal guarantees of rights to freedom of thought and expression, freedom of peaceful assembly, freedom of association, as well as freedom from arbitrary arrest, constitute an important safeguard against the imposition of forced or compulsory labour as a punishment for holding or expressing political or ideological views, or as a means of political coercion or education (2012 General Survey on the fundamental Conventions, paragraph 302). The Committee strongly urges the Government to amend or repeal the penal provisions referred to above (sections 193(1), 339, 342, 367, 368 and 369(2) of the Criminal Code), in order to ensure that no penalties involving compulsory labour may be imposed for the peaceful expression of political views or views ideologically opposed to the established system, for example by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. The Committee requests the Government to provide information in its next report on any progress made in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2016.]

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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.

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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. In its earlier comments, the Committee 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 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 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 engaged in preparatory acts aimed at violence but, if sanctions involving compulsory labour enforce a prohibition of the peaceful expression of views or of opposition to the established political, social or economic system, such sanctions fall within the scope of the Convention. 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 may give rise to political coercion involving sanctions contrary to the Convention (see also the explanations contained in paragraphs 152 and 162 of the Committee’s General Survey of 2007 on the eradication of forced labour).

The Committee has noted the Government’s indications concerning the application of the above provisions in practice. It has noted, in particular, that, in 2005, three persons were punished with the sanction of limitation of freedom under section 342 and 34 persons were punished with the administrative arrest under section 167-1 for the violations referred to above.

The Committee reiterates its 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, for example, 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 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 a public official of his duties as the result of a negligent attitude, causing 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 has taken due note of the Government’s view expressed in the report that section 428(1) is not in contradiction with the Convention, since the latter does not apply to sanctions imposed for the protection of a general public interest. The Committee points out in this regard, referring also to the explanations in paragraphs 175–178 of its General Survey of 2007 on the eradication of forced labour, that only sanctions relating to breaches of labour discipline 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 also reiterates in its report that there is no provision for compulsory enlistment to public or corrective works under section 428 of the Criminal Code. However, as the Committee has noted previously, 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 institutions, the refusal to work being punishable with sanctions. Section 50(1) provides for a similar obligation with regard to convicted persons serving a term of limitation of freedom.

The Committee has noted the Government’s indications concerning the application of section 428(1) in practice. It has noted, in particular, that one person was punished with the sanction of limitation of freedom and three persons were punished with imprisonment under this section in 2005.

The Committee therefore reiterates its hope that measures will be taken to amend section 428(1), for example, by restricting its scope to acts which are committed in the exercise of functions which are essential to safety or in circumstances where life or health is in danger (as 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 defining or illustrating its scope. In particular, please clarify the notion of a “particularly large scale damage or substantial harm” to legitimate rights and interests of persons or to state interests.

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 the Government’s indication in its earlier report 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 recalled that, in order to be compatible with the Convention, restrictions on the right to strike enforceable with sanctions involving compulsory labour must be limited in scope to the situations of force majeure or to other circumstances in which the life, personal safety or health of the whole or part of the population might be endangered (see also the explanations contained in paragraphs 182–189 of the Committee’s General Survey of 2007 on the eradication of forced labour).

The Committee previously noted the Government’s statement in its earlier 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 comments addressed to the Government under Convention No. 87, particularly as regards the need to repeal certain restrictions relevant to industrial action, the Committee again 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.

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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.

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The Committee has noted the information provided by the Government in reply to its earlier comments.

1. Article 1(a) of the Convention. The Committee has noted the provision of section 15 of the Law on Assemblies, Meetings, Street Marches, Demonstrations and Picketing, of 30 December 1997, concerning the responsibility for violation of the established procedure for their organization and holding. The Government indicates in its report that section 167-1 of the Code on Administrative Offences and section 342 of the Criminal Code are applicable in case of such violation. The Committee has noted that 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). Also, the Committee previously noted that section 342 of the Criminal Code provided 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 section 37 of the Correctional Labour Code and section 55(1) of the Criminal Code). The Committee requests the Government to provide, in its next report, 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 any court decisions defining or illustrating their scope, so as to enable the Committee to ascertain their conformity with the Convention.

2. The Committee has noted the provisions establishing administrative and penal sanctions for the violation of the Act on the Press and other Media, 1995.

3. Article 1(c). The Committee previously noted that, under section 428 of the Criminal Code, 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 Government indicates in its report that criminal punishment for an official’s neglect applies only if it amounts to a criminal deed and not merely a disciplinary fault. The Committee points out, referring to paragraphs 110-116 of its 1979 General Survey 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 Committee again requests the Government to supply information on the application of section 428 in practice, including copies of any court decisions defining or illustrating its scope.

4. Article 1(d). The Committee previously noted that, according to section 397 of the Labour Code, those who participate in a strike deemed unlawful by a court of law may be held liable pursuant to disciplinary and other procedures prescribed by law. The Government indicates in its report 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 of the Criminal Code, which provides for similar sanctions for the intentional blocking of transport communications, are applicable to participants in unlawful strikes. With reference to its comments made under Convention No. 87 ratified by Belarus, and referring also to paragraphs 122 and 123 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that restrictions on the right to strike enforced with sanctions involving compulsory labour must be limited in scope 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). The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that sanctions involving an obligation to work cannot be imposed for participation in strikes. It again requests the Government to supply information on the application in practice of sections 310 and 342 of the Criminal Code, including copies of the relevant court decisions.

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The Committee has noted the information provided by the Government in its report on the application of the Convention.

Article 1(a) of the Convention.  1.  The Committee notes that the new Criminal Code of 1999 provides for sanctions of imprisonment or limitation of freedom for the "organization of group actions violating public order" (section 342). It notes that confinement in prison involves compulsory labour under procedures and conditions defined by the Correctional Labour Code (section 37). It also notes that limitation of freedom, which consists in placing a convicted person under surveillance, is assigned for a term of up to five years and also involves compulsory labour (section 55(1) of the Criminal Code). The Committee asks the Government to provide, in its next report, information on the application in practice of the abovementioned section 342 of the Criminal Code, including copies of any court decisions defining or illustrating its scope, so as to enable the Committee to ascertain its conformity with the Convention. Please also supply a full updated text of the Correctional Labour Code.

2.  The Committee notes that the violation of the Act on the Press and other Media, 1995, as amended, is punishable by administrative and penal sanctions (sections 46 and 49). It asks the Government to clarify, in its next report, the scope of administrative or criminal liability for violation of the Act, indicating, in particular, administrative and penal sanctions which may be imposed.

3.  The Committee requests the Government to supply a copy of Presidential Decree No. 5 (March 1997) concerning the right to assemble, as well as information on its application in practice.

Article 1(c).  4.  The Committee notes that, under section 428 of the Criminal Code, 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. In order to enable the Committee to ascertain that the abovementioned provision of the Criminal Code is not used as a means of labour discipline within the meaning of the Convention, please supply information on its application in practice, including copies of any court decisions defining or illustrating its scope.

Article 1(d).  5.  With reference to its comments made under Convention No. 87 ratified by Belarus, the Committee notes that, according to section 397 of the Labour Code those who participate in a strike deemed unlawful by a court of law may be held liable pursuant to disciplinary and other procedures prescribed by law. It asks the Government to clarify the scope of such liability in case of participation in a strike declared unlawful pursuant to section 395 of the Labour Code and to indicate what sanctions are applicable for participation in unlawful strikes. Please state whether section 342 of the Criminal Code, which provides for sanctions of imprisonment or limitation of freedom for the organization of group actions violating public order and resulting in disturbances of operation of transport or work of enterprises, institutions or organizations, is applicable to participants in unlawful strikes and, if so, supply information on its application in practice, including copies of any relevant court decisions. Please also state whether section 310 of the Criminal Code, which provides for similar sanctions for the intentional blocking of transport communications, may be invoked in case of an unlawful strike in the transport sector and, if so, supply information on its application in practice.

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The Committee has noted with interest the information provided by the Government in its first report on the application of the Convention. It would be grateful if the Government would supply, with its next report, copies of the legislation in force in the following fields: updated texts of the Criminal Code and the Correctional Labour Code; the laws governing the press and assemblies, meetings and demonstrations; the law governing political parties; any amendments to the Act on Social Associations of 4 October 1994; the law governing the civil service; any provisions adopted under article 63 of the Constitution of Belarus concerning a state of emergency; and any provisions restricting the right to strike and imposing sanctions for violation of such restrictions.