Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Belarus (Ratification: 1956)

The Committee takes note of the observations of the International Trade Union Confederation (ITUC), received on 15 March 2022 and 1 September 2022, referring to matters addressed in this comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

Follow-up to the recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (the Conference Committee) in June 2022 concerning the application of the Convention. The Conference Committee deplored and deeply regretted the allegations of extreme violence to repress peaceful protests and assembly, and the detention, imprisonment and violent treatment of workers while in custody. The Conference Committee further deplored the escalating measures deployed to repress trade union activities, as well as the systemic destruction of independent trade unions. The Conference Committee expressed its deep concern that, 18 years after the Commission of Inquiry’s report, the Government had failed to take measures to address most of the Commission’s recommendations. The Conference Committee recalled the recommendations of the 2004 Commission of Inquiry noting the failure to make progress on its implementation and the need for their full and effective implementation, without further delay. The Conference Committee urged the Government to: (i) restore without delay full respect for workers’ rights in respect of freedom of association; (ii) refrain from the arrest, detention, violent treatment, intimidation or harassment, including judicial harassment, of trade union leaders and members conducting lawful trade union activities; (iii) investigate without delay alleged instances of intimidation or physical violence through an independent judicial inquiry; (iv) immediately release all trade union leaders and members arrested for participating in peaceful assemblies or arrested for exercising their civil liberties pursuant to their legitimate trade union activities and drop all related charges, including for the following persons: Aliaksandr Yarashuk – a member of the Governing Body of the ILO; Siarhei Antusevich, Vice-President of the Belarus Congress of Democratic Trade Unions (BKDP); Gennadiy Fedynich, leader of the Belarusian Union of Radio and Electronics Workers (REP); Mikalai Sharakh, President of the Belarusian Free Trade Union (SPB); Aliaksandr Bukhvostov, President of the Free Trade Union of Metal Workers (SPM); and Zinaida Mikhniuk, Vice-Chairperson of the Belarusian Union of Radio and Electronics Workers (REP); (v) give access, as a matter of urgency, to visitors, including officials of the ILO, to ascertain the conditions of arrest and detention and the welfare of the above-mentioned persons; and (vi) take immediate action to implement fully the 2004 report of the Commission of Inquiry and the conclusions of the Conference Committee on the Application of Standards, including the conclusions adopted by the Committee in 2021. The Committee decided to include its conclusions in a special paragraph of the report and to mention this case as a case of continued failure to implement the Convention.

The Conference Committee also referred this matter to the Governing Body to follow up at its June 2022 session and to consider, at that time, any further measures, including those foreseen in the ILO Constitution, to secure compliance with the recommendations of the Commission of Inquiry. The Committee takes note of the decision of the Governing Body concerning the consideration of any further measures, including those foreseen in the ILO Constitution, to secure compliance by the Government of Belarus with the recommendations of the Commission of Inquiry [GB.346/INS/13(Rev.1)]. The Committee notes that the Governing Body at its 346th Session in November 2022: (a) deplored that no progress had been made by the Government of Belarus in implementing the recommendations of the 2004 Commission of Inquiry; (b) urged the Government to ensure full respect for freedom of association and, in particular, revoke all legislative and other measures directly or indirectly having the effect of outlawing independent trade unions or employers’ organizations; (c) urged the Government to immediately release all trade union leaders and members arrested for participating in peaceful assemblies or arrested for exercising their civil liberties pursuant to their legitimate trade union activities and drop all related charges; (d) urged the Government to allow the ILO, as a matter of urgency, to ascertain the conditions of arrest and detention and the welfare of the abovementioned trade unionists; (e) noted that the Committee of Experts on the Application of Conventions and Recommendations will be reviewing the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in Belarus at its November-December 2022 meeting; (f) urged the Government to submit all information regarding the measures taken to implement all outstanding recommendations of the Commission of Inquiry and in respect of the more recent developments forming part of the complaint to the Committee on Freedom of Association for its examination at its March 2023 meeting; (g) requested the Director-General to submit to the Governing Body at its 347th Session (March 2023) a document detailing options for measures under article 33 of the ILO Constitution as well as other measures to secure compliance by the Government of Belarus with the recommendations of the Commission of Inquiry taking account of the views expressed; and (h) decided to place on the agenda of the 111th Session (2023) of the International Labour Conference an item concerning measures under article 33 of the ILO Constitution to secure compliance by the Government of Belarus with the recommendations of the Commission of Inquiry.

The Committee notes the above information with grave concern as it points to a total lack of progress in implementing the recommendations of the 2004 Commission of Inquiry and in addressing the outstanding recommendations of the ILO supervisory bodies. In this respect, the Committee recalls that in its previous comments it had expressed deep concerns regarding the situation of civil liberties in Belarus and the application of the Convention in law and in practice and had urged the Government to take a number of measures to address them. At the outset, the Committee notes with deep regret that in its report, the Government merely reiterates the information it had previously provided and considers that the Committee misunderstands and misinterprets the situation on the ground.

Civil liberties and trade union rights. The Committee recalls that in its previous comment it had noted the continued deterioration of the situation of human rights in the country following the presidential election in August 2020 and in this respect had urged the Government to: (i) investigate without delay all alleged instances of intimidation or physical violence through an independent judicial inquiry and to provide detailed information on the outcome; (ii) take measures for the release of all trade unionists who remain in detention and to drop all charges related to participation in peaceful protest action; (iii) take all the necessary measures, including legislative, if necessary, to ensure the right to a fair trial and an impartial and independent judiciary and justice administration; (iv) ensure impartial and independent judiciary and justice administration in general in order to guarantee that investigations into these grave allegations are truly independent, neutral, objective and impartial; and (v)supply copies of the relevant court decisions upholding detention and imprisonment of workers and trade unionists. The Committee notes with deep regret that the Government reiterates that: (i) the citizens referred to in the complaints made by trade union organizations as having allegedly suffered for their participation in peaceful protests and strikes were charged with disciplinary, administrative and, in certain cases, criminal offences for having committed specific illegal actions. The bringing of these citizens to justice has nothing to do with persecution for the exercise of their civil or trade union rights and freedoms; (ii) article 60 of the Constitution guarantees the protection of the rights and freedoms of all by a competent, independent and impartial judiciary. Any interference with the courts’ administration of justice is prohibited and punishable by law. All trials are public. The adversarial principle and equality of parties in proceedings apply and the parties have the right to appeal; (iii) domestic law does not provide for supplying copies of court verdicts to persons with no connection to the trial. The ILO supervisory bodies can obtain the requested copies from the persons authorized to have access to verdicts.

The Committee notes that the UN High Commissioner for Human Rights indicated in her 2022 Report on the situation of human rights in Belarus in the run-up to the 2020 presidential election and in its aftermath that in response to the protests between 9 and 14 August 2020 “individuals were targeted following a consistent pattern of unnecessary or disproportionate use of force, arrests, detention (including incommunicado detention), and torture or ill-treatment, including rape and sexual and gender-based violence, and the systematic denial of the rights to due process and to a fair trial. The failure to effectively investigate human rights violations, including allegations of torture or other ill-treatment, is a contravention of the State’s obligations under international human rights law. Furthermore, OHCHR found that, besides the lack of investigation, there was an active policy to shield perpetrators and prevent accountability, reflected in the degree of reprisals, intimidation of victims and witnesses, and attacks on lawyers and human rights defenders”.

The Committee recalls that the International Labour Conference 1970 resolution concerning trade union rights and their relation to civil liberties, emphasizes that the rights conferred upon workers’ and employers’ organizations must be based on respect for civil liberties, as their absence removes all meaning from the concept of trade union rights. The Committee considers that the failure of the Government to reply to very serious allegations of violation of civil liberties or to address the repeated specific requests of the ILO supervisory bodies, including those made by this Committee, reinforces the reality of wilful Government noncompliance with its obligations under the Convention.

The Committee notes with deepconcern that while the Government fails to reply to its previous comments, new allegations of arbitrary arrest, detention, prosecution and criminal sanctions against trade union leaders and members, as well as searches conducted in their homes have been submitted by the ITUC. In this regard, the Committee notes that the ITUC denounces, as did several speakers at the Conference Committee in June 2022, the imprisonment of the following 17 unionists, all leaders and members of the BKDP and its affiliates: Aliaksandr Yarashuk; Siarhei Antusevich; Hennadzy Fiadynich; Vatslau Areshka; Mikhail Hromau; Iryna But-Husaim; Miraslau Sabchuk; Yanina Malash; Vitali Chychmarou; Vasil Berasneu; Zinaida Mikhniuk; Aliaksandr Mishuk; Ihar Povarau; Yauhen Hovar; Artsiom Zhernak; Mikalaj Sharakh; and Andrei Khanevich. The Committee deplores the Government’s unwillingness to immediately release trade union leaders and members as urged by the Conference Committee above. Accordingly, this Committee urges the Government to immediately release all trade union leaders and members arrested for participating in peaceful assemblies or for exercising their civil liberties pursuant to their legitimate trade union activities, and to drop all related charges. The Committee also urges the Government to provide detailed information concerning the situation of these trade unionists, including charges brought against them, and give access, as a matter of urgency, to visitors, including officials of the ILO, to ascertain the conditions of arrest and detention and the welfare of the above-mentioned persons. If in the meantime, any of the above trade unionists have been brought to court, the Committee urges the Government to provide information on the outcome of any proceedings undertaken against them and to communicate copies of any court decisions issued in their cases.

Application of the Convention. The Committee recalls that the outstanding issues of the application of the Convention relate to the following concerns: (1) right to establish workers’ organizations, which includes the issue of legal address and the right, in practice, to form trade unions outside the Federation of Trade Unions of Belarus (FPB); (2) the right of workers’ organizations to receive and use foreign gratuitous aid (funding obtained from abroad); (3) the right, in law and in practice, to demonstrate and hold mass events; (4) the right to strike; (5) consultation with organizations of workers and employers; and (6) labour disputes resolution system. The Committee observes with deep regret the absence of information on the concrete measures taken by the Government to give effect to the Committee’s previous requests aimed at addressing these concerns; instead, the Government merely reiterates the information it has previously provided.

The Committee also notes with the utmost concern the following new information provided by the Government, which attests to further deterioration in the status of freedom of association in the country. The Government indicates that following the presidential election in August 2020, the activities of certain trade unions became highly unconstructive and politicized. Instead of performing their tasks of protecting citizens’ labour and socio-economic rights and interests, taking action to warn workers against participation in illegal protest actions of a political nature at their enterprises and informing their members of the illegal nature of such actions, which in a number of cases posed a serious threat to public order and the safety of the population, representatives of the BKDP and leaders and members of its affiliated trade unions participated in destructive acts and unauthorized mass activities aimed at achieving regime change by unconstitutional means. These trade unions, according to the Government, indulged in behaviour which contradicted the Constitution and other pieces of national legislation and which focused not on their statutory tasks and objectives but on active participation in illegal activities and their popularization. In order to prevent further violations of the legislation, applications were made to the Prosecutor General and the Supreme Court to halt the activities of the BKDP and its member trade unions. At the petition of the Prosecutor General, the Supreme Court issued rulings to discontinue the activities of the Free Trade Union of Belarus (SPB), the Free Trade Union of Metalworkers (SPM), the Belarusian Independent Union of Mining, Chemical, Oil Industry, Energy, Transport, Construction and other Workers (BNP affiliate), the Radio Electronics Workers (REP) Union and the BKDP. Pursuant to the deliberations of the Court, it was established that instead of defending the labour and socio-economic rights of workers, the leaders and a number of members of these trade unions participated actively in destructive activities and mass events which violated public order, and also distributed information material with extremist content. The Supreme Court in its verdicts found violations of the Constitution, the Trade Unions Act and other national laws and regulations on matters concerning the receipt and use of foreign gratuitous aid. The Committee deplores that following these court decisions, the BKDP and its affiliate organizations at all levels have now ceased to operate in the country.

The Committee recalls that the Commission of Inquiry had requested the Government to amend Presidential Decree No. 24 (2003) on Receiving and Using Foreign Gratuitous Aid. The Committee for a number of years has been asking the Government to abolish the sanctions imposed on trade unions (liquidation of an organization) for a single violation of the Decree and to widen the scope of activities for which foreign financial assistance can be used so as to include events organized by trade unions. The Committee recalls that Decree No. 24 had been superseded by Presidential Decree No. 5 (2015) and then by Decree No. 3 of 25 May 2020, under which the foreign gratuitous aid could still not be used to organize or hold assemblies, rallies, street marches, demonstrations, pickets or strikes, or to produce or distribute campaign materials, hold seminars or carry out other forms of activities aimed at “political and mass propaganda work among the population”, and that a single violation of the Regulation still bore the sanction of possible liquidation of the organization. The Committee observed that the broad expression “political and mass propaganda work among the population” when applied to trade unions may hinder the exercise of their rights as it is normal and inevitable for trade unions to take a stand on questions having political aspects that affect their socio-economic interests, as well as on purely economic or social questions.

The Committee further recalls that the Commission of Inquiry had requested the Government to amend the Law on Mass Activities, under which, a trade union that violates the procedure for organizing and holding mass events may, in the case of serious damage or substantial harm to the rights and legal interests of other citizens and organizations, be liquidated for a single violation. Following its 2021 amendment, the Law makes an organization responsible if its leaders and members of their governing bodies make public calls for organizing a mass event before permission to organize the event is granted.

Finally, the Committee recalls that it had noted with regret the Regulation on the procedure requiring payment for services provided by the internal affairs authorities in respect of protection of public order, which outlines the fees that must be paid by the organizer of a mass event in relation to maintenance of public services and the expenses of the specialized bodies (medical care and cleaning services) following such an event.

Reading these provisions alongside those forbidding the use of foreign gratuitous aid for the conduct of mass events, the Committee had considered that the capacity for carrying out mass actions would appear to be extremely limited if not non-existent in practice. The Committee therefore urged the Government to amend Decree No. 3 of 25 May 2020 on the registration and use of foreign gratuitous aid, the Law on Mass Activities and the accompanying Regulation, and recalled that the amendments should be directed at abolishing the sanctions imposed on trade unions or trade unionists for a single violation of the respective legislation; at setting out clear grounds for the denial of requests to hold trade union mass events, bearing in mind that any such restriction should be in conformity with freedom of association principles; and at widening the scope of activities for which foreign financial assistance can be used.

In addition, the Committee had noted that the Criminal Code was amended in 2021 so as to introduce the following restrictions and associated penalties: repeated violations of the procedure for organizing and holding of mass events, including public calls therefor, are punishable by arrest, or restraint of liberty or imprisonment of up to three years (section 342-2); insult of a government official is punishable by a fine and/or restriction of liberty or imprisonment for up to three years (section 369); the penalty for “discrediting the Republic of Belarus” was increased from two to four years imprisonment with a fine (section 369-1); section 369-3 of the Criminal Code has been retitled from “violation of procedure for organizing and holding of mass events” to “public calls for the organization or conduct of an illegal meeting, rally, street procession, demonstration or picketing, or the involvement of persons in such mass events”, which became an offence punishable by up to five years of imprisonment. The Committee recalls the BKDP allegation that criminal liability can be established simply for organizing peaceful assemblies and that any criticism and slogans are seen by the authorities as insults within the meaning of section 369 of the Criminal Code and that BKDP’s leaders were under the threat of being prosecuted under section 369-1 of the Criminal Code for calling for a boycott of Belarusian goods and application of sanctions. The Committee expresses its deep concern that trade unionists’ speaking at the International Labour Conference, engaging with the ILO, and in case of Mr Yarashuk, being a member of the ILO Governing Body, could well have been interpreted by the authorities as “discrediting the Republic of Belarus”, punishable by four years of imprisonment.

The Committee notes the Government’s renewed reiteration that there is no link between the established procedure for obtaining funding from abroad (foreign gratuitous aid) and Articles 5 and 6 of the Convention. The Government once again points out that allowing external forces (in this case the trade unions of other countries and international trade union associations) to sponsor the holding of mass events in Belarus can present an opportunity to destabilize the socio-political and socio-economic situation, which in turn has an extremely negative effect on public life and citizens’ wellbeing. Thus, the existing ban on receiving and using foreign gratuitous aid for the purposes of conducting political and mass propaganda work among the population is bound up with the interests of national security, and the need to exclude any possible destructive influence and pressure from external forces. The Government further reiterates that the exercise of the right of peaceful assembly is not subject to any restrictions, except those that are imposed in conformity with the law and are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, the protection of the rights and freedoms of others. In holding mass events, trade unions are obliged to observe public order and must not permit actions which may cause an event to lose its peaceful character and inflict serious harm on citizens, society or the State. In the Government’s view, the legal penalty prescribed for organizers of mass events which cause substantial damage or harm to the interests of citizens and organizations, and also to the interests of State and society, does not constitute, and should not be interpreted as, a constraining factor on the exercise of rights to freedom of peaceful assembly by citizens and trade unions. In light of the above, the Government considers that any relaxation of responsibility for violation of the procedure for holding mass events or any lifting of restrictions on the use of foreign financial aid for the holding of political and mass propaganda work could only lead to circumstances likely to strengthen the external destructive influence on the situation in the country, which does not serve the interests of the country.

The Committee notes with deep regret that the Government has no intention of amending the legislation as requested by the Commission of Inquiry, whose recommendations the Government accepted as per article 29(2) of the ILO Constitution nearly 20 years ago. The Committee therefore reiterates its previous request to amend without further delay Decree No. 3, the Law on Mass Activities and the accompanying Regulation. The Committee further requests the Government to repeal the above-mentioned provisions of the Criminal Code in order to bring them into compliance with the Government’s international obligations regarding freedom of association. The Committee expects the Government to provide information on all steps taken in this regard.

The Committee recalls that it had been requesting the Government for a number of years to amend sections 388(1), (3) and (4), 390, 392 and 393 of the Labour Code restricting the right to strike; as well as its section 42 (7), which expressly allows an employer to dismiss/terminate a labour contract with a worker who is absent from work in connection with serving an administrative penalty in the form of an administrative arrest; who forces other workers to participate in a strike or calls on other workers to stop performing work duties without sound reason; and who participates in an illegal strike or other forms of withholding labour without sound reasons. The Committee recalls the BKDP allegations that numerous trade unionists who participated in mass events and strikes organized following the August 2020 Presidential election were found guilty of administrative breaches and received corresponding penalty in the form of administrative arrest, and consequently dismissed. The Committee regrets that the Government merely reiterates its previous view that the national legislation is in conformity with the international labour instruments; that in Belarus, according to section 388 of the Labour Code, a strike constitutes a temporary and voluntary refusal by workers to perform their employment duties (fully or in part) for the purpose of settling a collective labour dispute; and that strikes of political nature are forbidden. The Committee recalls since the maintaining of the employment relationship is a normal consequence of recognition of the right to strike, its lawful exercise should not result in striking workers being dismissed or discriminated against (General Survey on the fundamental Conventions, 2012, paragraph 161). The Committee is therefore bound to urge the Government to take measures to revise the above-mentioned legislative provisions, which negatively affect the right of workers’ organizations to organize their activities in full freedom, and to provide information on all measures taken or envisaged to that end.

The Committee deplores the effect of the dissolution of the BKDP on the work of the National Council on Labour and Social Issues (NCLSI) and of the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere (the tripartite Council). With the dissolution of the BKDP, the only representation of workers’ voice in these structures is now the FPB. The Committee had previously noted the publicly expressed support for that organization from State authorities at the highest level. The Conference Committee conclusions at its June 2021 session, reproduced in full in 2022, refer to support for the FPB from the President of the country, and urge the Government in the strongest terms to refrain from showing favouritism towards any particular trade union. The Committee recalls in this respect—as it has before—the importance of ensuring an atmosphere in which trade union organizations, whether within or outside the traditional structure, are able to flourish in the country. In these circumstances, the Committee questions the continuing legitimacy of the NCLSI and the tripartite Council.

The Committee emphasizes that pursuant to Article 11 of the Convention, each ILO Member for which the Convention is in force shall take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize. The Committee considers that the development of free and independent organizations and their involvement in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. The Committee urges the Government to take steps to review the situation of the dissolved trade unions in this light so as to ensure that they may again function.

The Committee recalls that in its 2004 report, the Commission of Inquiry considered that its recommendations should be implemented without further delay and that the majority of its recommendations should be completed at the latest by 1 June 2005. The Committee deplores that 18 years later, the recent developments indicate continuing steps backward as all space for the safe existence of an independent trade union movement in Belarus has virtually disappeared. The Committee urges the Government to abandon its policy of destroying the independent trade union movement and silencing the free voices of workers. The Committee urges the Government to engage with the ILO with a view to fully implement all outstanding recommendations of the ILO supervisory bodies without further delay.