Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

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.]