Report in which the committee requests to be kept informed of development - Report No 302, March 1996

Case No 1849 (Belarus) - Complaint date: 31-AUG-95 - Closed

Allegations: Violations of the right to strike; arrests of trade union leaders; restrictive legislation on freedom of association

1. 161. In a communication dated 31 August 1995 the International Confederation of Free Trade Unions presented a complaint alleging violations of freedom of association and trade union rights against the Government of Belarus. It provided additional information in communications of 7 and 11 September 1995. The World Confederation of Labour, the Free Trade Union of Belarus and the Belarussian Congress of Democratic Trade Unions supported the complaint in communications dated 5 September 1995, 4 September 1995 and 7 September 1995 respectively.
2. 162. The Government provided its observations in communications dated 30 October, 10 November and 19 December 1995.
3. 163. Belarus has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 164. The complainant organizations allege violations of Convention No. 87 and of Convention No. 98 as a result of measures taken by public authorities against industrial action carried out at Minsk metro and in the trolleybus system in the city of Gomyel, between 16 and 21 August 1995.
2. 165. In support of their complaint the complainant organizations point out that article 41 of the Constitution of Belarus guarantees the right of workers to organize, to bargain collectively and to strike. Article 13 of the Act on procedures for settling collective labour disputes specifically grants metro workers the right to strike. However, according to article 16 of the same Act strikes are prohibited in certain areas, such as for example the armed forces, and more generally in enterprises where work stoppages endanger "the life and health of persons". Order No. 158 of the Cabinet of Ministers of Belarus of 28 March 1995 contains a detailed list of enterprises and industries, where, according to this Order, strikes endanger the life and health of persons. This list includes transport services and it refers specifically to Minsk Metro. Hence, according to the complainants, this order is contrary to article 13 of the Act on dispute settlement. The Order also lists, among others, enterprises or organizations active in railways, radio and television, air traffic, telecommunications, the petroleum industry, the chemical industry and the food industry, thus making strikes unlawful in these areas too.
   • The strike at Minsk metro
3. 166. The ICFTU and the WCL explain that a strike of Minsk metro workers began at 5 a.m. on 17 August 1995, on a vote taken at a meeting of the metro workers' union. The central issues were: (1) failure of the employer to pay wages on time, thus causing great difficulty to workers and their families; (2) employer violations of the current collective bargaining agreement; and (3) employer violations of the Law on Collective Bargaining by unilateral changes in certain pay and benefits in the current collective agreement.
4. 167. On 21 August, at approximately 9 a.m., 23 metro employees, including drivers, machinists, electricians and others, were detained by special police of the Interior Ministry (OMON). This happened when the workers were walking peaceably from the worksite to the headquarters of the Free Trade Union of Belarus (SFB), were not carrying signs or banners, and were not disrupting traffic. The OMON forces wore face masks and fired warning shots in the air, telling the workers to lie on the ground before taking them into detention. The detained workers were taken to the sports hall at a nearby military base.
5. 168. Included among the 23 employees were Vladimir Makarchuk, Chairman of the Trade Union Committee of Metro Workers for the independent Free Trade Union of Belarus (SFB), and Nikolai Konakh, Chairman of the Trade Union Committee of Metro Workers for the Federation of Trade Unions of Belarus (FPB). Mr. Makarchuk and Mr. Konakh were kept in a separate part of the facility. After 13 hours, at approximately 11 p.m., the workers were individually asked by an officer to sign papers stating they had no complaints regarding their treatment while in detention, and were freed without charge. Mr. Makarchuk and Mr. Konakh, however, remained in detention and were questioned without the presence of an attorney.
6. 169. Moreover, Mr. S. Antonchik, a founding member of the SFB and an elected Deputy of the Supreme Soviet, was detained on 21 August 1995 after addressing the strike issue at a lunchtime meeting. Mr. Antonchik was released without charge on the morning of 23 August.
7. 170. Also on 21 August, Mr. G. Bykov, Chairman of the SPB, was brought by police against his will for questioning to an unknown location. He requested an attorney during questioning but was denied this request. His family had no access to him. On 23 August at 5 p.m. Mr. Bykov and Mr. Konakh were brought before a judge in an administrative hearing. Both were charged with an administrative violation of regulations regarding the conduct of meetings, rallies and demonstrations. Mr. Konakh was accused of leading the aforementioned group of workers to the SPB headquarters, and Mr. Bykov was accused of speaking to the workers at the SPB headquarters. The attorney for the two detainees was given no prior notice of the hearing, and was not permitted to call witnesses on their behalf, while a police officer testified against them. He pointed out to the judge that the written protocols stating their charges were improperly altered by the prosecutor. Both were sentenced to ten days' detention in a facility for minor offences (including alcoholics, hoodlums and vice offenders) and not permitted family visits or parcels.
8. 171. Mr. Makarchuk could not obtain an attorney of his choice and was brought to a hearing on 24 August at 11 a.m. and was charged with the same administrative violations. The hearing this time was closed to all observers. Mr. Makarchuk was not permitted to call witnesses although police officers testified against him. He was sentenced to 15 days' detention under the same conditions.
9. 172. According to reports from Minsk received by the ICFTU food, other than 400 grams of black bread and a cup of water every other day, was denied to the three jailed leaders because they refused to work while in detention. The three reportedly refused work because they believed themselves to be political prisoners.
10. 173. On 21 and 22 August, offices of the SFB were searched, phones cut off, documents removed, and the office temporarily sealed. The official seal of the Union was also taken. According to the complainants the authorization to search documents relating to trade union activities was in violation of Belarussian law. Also the offices of the Congress of Democratic Trade Unions, an umbrella organization which includes, inter alia, the SPB, were searched and partially sealed.
11. 174. A hearing was held on 22 August at 10 a.m. before a judge to determine whether the strike was illegal. The SPB's attorney was given 30 minutes' notice of the hearing, was not permitted to prepare written documents, and was not permitted to call witnesses for the Union. A police officer testified that workers marched in a column on 21 August from the metro depot to the SPB headquarters, staying on the sidewalk, not disrupting traffic, and not carrying signs or banners. The judge declared the strike illegal.
12. 175. Meanwhile the Procurator-General authorized a criminal investigation on charges of disrupting the work of public transport. The charge carries a maximum penalty of three years' incarceration. Also both the SPB and the FPB are threatened with financial penalties related to the strike, amounting to approximately US$174,000 total.
13. 176. In addition to taking measures against union members and leaders, on 21 August 1995 engineers from Belarussian commuter trains, as well as driver trainers from Ukraine and Moscow metros, were brought in to drive Minsk metro trains, being paid considerably more than normal rates. A police officer was placed in the cab with each driver to oversee his/her work. Metro workers were told to sign a document stating they were no longer supporting the strike, or be fired. The strike effectively ended on the morning of 22 August 1995.
14. 177. According to the ICFTU, the number of metro workers who have been terminated in retaliation for striking stands currently at 58. In a meeting with 34 metro workers, the mayor of Minsk is reported to have said that the President of the Republic, Mr. L. Lukashenko, issued an order stating that sacked metro workers must find employment for two months at a collective farm and receive a favourable recommendation before being considered for employment anywhere else.
    • The trolleybus strike in Gomyel
15. 178. A strike of trolleybus drivers in Gomyel began on Wednesday, 16 August 1995. Approximately 500 drivers appeared at the worksite, but refused to drive buses. The action resulted from the failure to pay due wages for one month. The Gomyel drivers demanded a wage increase in addition to bringing wage payments up to date. The average wage for drivers was 750,000 Belarussian roubles (US$65), and the demanded wage was 1.5 million roubles. The mostly state-controlled media reported, however, that drivers currently earned 1.5 million roubles and were demanding 3 million roubles; an obvious attempt to turn public opinion against the strike. However the drivers were able to muster public support by drawing attention to certain hefty fare increases affecting the public, and by focusing attention on the insufficient number and poor repair of the trolleys, resulting in overload and extreme safety hazards.
16. 179. The strike continued for six days, until Monday, 21 August. At this point management brought wage payments up to date and granted a 30 per cent rise. Drivers then returned to work because they felt a longer stoppage would cause severe inconvenience to commuters.
17. 180. The complainants report that during the strike six drivers were dismissed. After the strike more were terminated, bringing the present number of dismissed workers up to 23. According to the collective agreement covering these workers, terminations have to be approved by the trade union committee (Profkom). The relevant requests for dismissal were forwarded to the Profkom affiliated with the Federation of Trade Unions of Belarus (FPB), which opposed the strike. The Profkom gave its consent and the employees were dismissed. There is a danger of more dismissals since, according to the ICFTU, management has prepared a list of 142 workers who may still be dismissed as a result of the strike.
18. 181. The local procurator opened a criminal investigation, targeting the members of the "Collective Agreement Negotiation Committee", even though they were not strike leaders. The reported charges are disruption of public transport and carry possible three-year prison sentences. The procurator also threatens a fine of approximately US$130,000 against the SPB and/or individuals.
    • Decree No. 336
19. 182. In addition to the above measures taken in respect of the strikes in Minsk and Gomyel, a "Decree of the President of the Republic of Belarus, No. 336", entitled "Measures to ensure stability and law and order in the Republic of Belarus", was proclaimed and entered into force on 21 August 1995. This Decree reads as follows:
    • In order to secure political and economic stability, to eliminate contradictions between the laws and the constitution of Belarus, to strengthen discipline and public order, to prevent illegal strikes and, in accordance with paragraph 1 of article 100 of the Constitution of Belarus, I order:
20. (1) to suspend until the introduction of corresponding changes in the Law on Trade Unions of the Republic of Belarus the activity of the Free Trade Union of Belarus and the local organization of Minsk metro, affiliated with the Trade Union of Railroadmen and Transport Construction Workers of the Republic of Belarus;
21. (2) the Procurator's office to file appropriate applications in the courts to ban the activity of the Free Trade Union of Belarus and the local organization of Minsk metro, affiliated with the Trade Union of Railroadmen and Transport Construction Workers of the Republic of Belarus;
22. (3) to provide that activities of political parties, public associations and trade unions taking part in strikes at enterprises determined in the list of the Cabinet of Ministers of the Republic of Belarus of 28 March 1995, No. 158, shall be terminated as per legal procedure;
23. (4) to suspend, until appropriate alterations and changes are introduced, implementation of:
    • parts 3 and 5 of article 37 of the Law on the Republic of Belarus Supreme Soviet Deputy Status;
    • parts 1 and 3 of article 37 of the Law on the Republic of Belarus Local Soviet Deputy status;
    • part 2 of article 110 of the Law on the Supreme Soviet of the Republic of Belarus (concerning Supreme Soviet Deputy's immunity for a period of two years after their term of office is over);
24. (5) the Ministry of Justice and the Procurator's Office to take measures, so as to improve supervision of compliance with the laws of Belarus by political parties, public associations and trade unions;
25. (6) the Cabinet of Ministers of the Republic of Belarus, together with the Federation of Trade Unions of Belarus, within one month, to work out and present to the President of the Republic of Belarus the necessary draft laws on the introduction of changes and supplements to the existing laws of the Republic of Belarus;
26. (7) that this Decree is to be enforced, as of the day of its signing.
    • President of the Republic of Belarus, (signed) A. Lukashenko, 21 August 1995.
27. 183. This Decree, in the complainants' view, violates both relevant freedom of association principles and Belarus laws and its Constitution. However, as the ICFTU points out, the Procurator-General continues to give Presidential Decrees such as this one priority over the Constitution and laws.
28. 184. Enterprise managers, following the orders of the President, sealed the offices of three large SPB Profkom offices, in addition to the Minsk metro SPB office. These are located at the Minsk motor factory, the Mogilyov automobile factory and the Novo-Lukoml power station. Moreover, the bank account of the SPB in Minsk has been frozen, and enterprise accounting offices have begun refusing to withhold SPB union dues from pay checks. Thus almost no dues can be collected through payroll deduction on behalf of the SPB.
29. 185. In early September the SPB filed an appeal against this Decree with the Constitutional Court. Members of the Supreme Soviet whose constitutional immunity was revoked by the Decree also filed an appeal.
30. 186. Finally, the ICFTU indicates that a few weeks after the strike, on 6 September 1995, the Chairman of the SPB, Mr. G. Bykov, and other SPB members attempted to drive to Warsaw for a press conference to be held in cooperation with the ICFTU Polish affiliate, NSZZ Solidarnosc. Their car was followed from Minsk to Brest by two cars. At the border crossing an unknown person from one of the cars approached Mr. Bykov, asked his name, and said if he attempted to cross the border "they might arrest you for three days". The SPB members then drove 40 kilometres to another crossing, but were followed by the same two cars. At this point they made no further attempt to leave Belarus, and conducted the press conference by telephone.

B. The Government's reply

1. 187. In its reply, the Government reaffirms its attachment to democratic transformation in all spheres of life, and its commitment to the interests and legitimate rights of different groups of the population. Since Belarus gained independence and sovereignty, a certain experience has been acquired in mutual action and cooperation between the authorities and trade union organizations, based on social partnership within the framework of national law and recognized international labour standards. Since independence a process is under way to establish a new legislative basis and to develop mechanisms of social partnership.
2. 188. It points out that each year a general agreement is concluded between employers and trade unions which clearly defines the framework between employers and workers, including procedures for settling labour disputes. This, in the Government's view, has contributed to the fact that in recent years there have been no major social conflicts and that all problems are resolved through negotiated agreements.
3. 189. Unfortunately, in this transitional period characterized by economic crisis and increasing social tensions some trade unions and their leaders act, so the Government adds, without however providing further details, in ways which fail to take account of national law. Actions and strikes in key sectors of the economy, in particular in transport enterprises, are obstacles to the implementation of measures adopted by the Government to resolve the crisis and stabilize the situation in the country.
   • The strikes in Minsk and Gomyel
4. 190. The Government, while not denying the facts as described by the complainants, points out, in its communication of 30 October 1995, that cases have been brought by dismissed workers before different courts, requesting their reinstatement. In its communication of 19 December 1995 it indicates that three workers have been reinstated as a result of court action whereas reinstatement was denied in 25 other cases because the workers concerned had been found to violate legislation in force, inter alia, the Act on procedures for settling collective labour disputes.
5. 191. On 23 October 1995, the Supreme Court had confirmed the decisions of the Minsk municipal and Gomyel regional courts which had declared unlawful the strikes in Minsk and Gomyel. The Government explains, without however giving specific details, that the trade unions had violated the procedures laid down by law for the presentation of demands to employers and the holding of strikes. Furthermore, an inquiry is being carried out by the Procurator of the Republic concerning the legality of the actions taken by the law enforcement bodies.
   • Decree No. 336
6. 192. The Government, in its reply of 30 October 1995, emphasized that this Decree was in no way intended to limit workers' rights. The need to take urgent administrative measures arose in connection with the disorganization of production and the emergence of negative repercussions endangering major cities and the health of the population. In its communication of 19 December 1995 it provided a copy of a decision of 8 November 1995 of the Constitutional Court which found that paragraph 1 of Decree No. 336 was not in conformity with the Constitution, the laws of the Republic of Belarus and international legal instruments that have been ratified by the Republic of Belarus and that paragraphs 2, 3 and 4 of the Decree were not in conformity with the Constitution and laws of the Republic of Belarus. Paragraphs 1, 2, 3 and 4 of the Decree therefore had no force of law since they were published. As regards paragraph 1, 2 and 3 of the Decree, which are particularly relevant to the present complaint, the Court provided the following reasons:
7. 193. In respect of paragraph 1 of the Decree the Court states that according to Article 4 of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), workers' and employers' organizations shall not be liable to be dissolved or suspended by administrative authority. Furthermore, in accordance with section 5 of the Act on trade unions of Belarus, the activities of a trade union may be discontinued on the basis of a decision taken by its members, as provided for in its statutes. In the event that the activities of trade unions or their associations violate the Constitution and laws of the Republic of Belarus, the unions may only be prohibited on the basis of a decision of a court of the Republic of Belarus, following a statement issued by the Procurator-General of the Republic of Belarus. The Court adds that the activities of a trade union may not be prohibited on the basis of decisions of any other bodies. In addition legislation in force does not provide for the prohibition of the activities of a primary trade union organization. A primary trade union is established or dissolved in accordance with the statutes of the trade union.
8. 194. The Constitutional Court also notes that legislation regulating the activities of trade unions contains no provision on the concept of "suspension of activities". As established by the Court, the effect of the suspension of the activities of the Free Trade Union of Belarus and the primary trade union organization of the Minsk underground railway system meant that they temporarily had to discontinue their activities, which implied that they were no longer able to carry out their functions.
9. 195. In examining paragraph 2 of the Decree, the Constitutional Court notes the failure to comply with the Constitution of Belarus and the Act on the Office of the Public Procurator of the Republic of Belarus. In accordance with article 35 of the Constitution of Belarus, the Procurator-General and subordinate public procurators are independent in applying their authority and are guided only by the law. In accordance with section 1 of the Act on the Office of the Public Procurator, this Office, which is subordinate to the Supreme Council, is an independent body that monitors the implementation of legislation on behalf of the State.
10. 196. The Court also concluded that paragraph 3 of the Decree failed to comply with the Constitution and laws of the Republic of Belarus. It stated that the procedures and grounds for terminating the activities of political parties, other public associations and trade unions are provided for in legislation of the Republic of Belarus. Hence, in accordance with section 22 of the Act on political parties and section 21 of the Act on public associations political parties and public associations may be dissolved on the basis of a decision of their ruling bodies or of a court decision. In accordance with section 35 of the Act on political parties and section 29 of the Act on public associations, political parties and public associations may be dissolved by the courts in the event that they: engage in activities designed to change the constitutional order by the use of violence; violate the integrity and safety of the State; engage in propaganda to incite warfare or violence; encourage national, religious or racial hatred; over one year, repeat actions for which they have been given written warning; and also if, when registering a political party or public association, their founders admit to violating the law. However, legislation in force does not prohibit the activities of trade unions, political parties or other public associations on the grounds that they have taken part in strikes.
11. 197. Furthermore, the Act on procedures for settling collective labour disputes provides only for the material responsibility of trade unions for unlawful strikes. In accordance with section 35 of this Act, compensation for damage suffered by the employer as a result of an unlawful strike is settled on the basis of a legal action brought by the employer or the public procurator, with the sum, as determined by the courts, paid out of union finances. The trade union may also have to pay the same amount in the form of a fine exacted by the courts for holding a strike that is deemed unlawful. In view of the above, the Court concluded that the Decree, contrary to legal requirements, introduced new grounds for terminating the activities of trade unions.
12. 198. The Court also addressed the issue of the immediate entry into force of the Decree, as stipulated in its paragraph 7. The Court noted that the Decree was first published in the Official Bulletin on 1 September 1995. The Court further observed that the Decree was applied in the time between the day of signature and its publication. It found that since Decree No. 336 related to citizens' rights, freedoms and duties, it should have been applied only after it had been published or general notification had been given through any other channel provided for by law.
13. 199. In concluding the Court stated clearly that the President should adopt measures to protect the sovereignty, national security and territorial integrity of the Republic of Belarus, to ensure political and economic stability, and respect for the citizens' rights and freedoms, however, within the limits of the authority conferred upon him by the Constitution and the laws of the Republic of Belarus.
14. 200. The Court also ordered that normative acts issued on the basis of Decree No. 336 be put in conformity with the Court's ruling. In its communication of 19 December 1995 the Government states that on the basis of this decision of the Court the bank account of the Free Trade Union (SFB) has been unfrozen and the Union has resumed its activities.

C. The Committee's conclusions

1. 201. The Committee notes with considerable concern that the allegations in this case refer to severe restrictions imposed upon the right to strike, exercised by workers in furtherance of their occupational interests, to the suspension of unions, to grave acts of anti-union discrimination, to the arrest and detention of trade unionists and to serious instances of interference in the functioning of trade union organizations in connection with the strikes carried out in Minsk and Gomyel in August 1995. It notes with regret that the replies of the Government, while not denying the facts as provided by the complainants, do not contain detailed and precise information in respect of several allegations made by the complainants.
2. 202. The Committee first wishes to emphasize, as it has done in previous instances (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 47), that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. Furthermore, a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty (see Digest, op. cit., para. 48).
3. 203. The Committee also recalls that the right to strike is one of the essential means available to workers and their organizations to promote and defend their economic and social interests (see Digest, loc. cit., para. 457). The Committee acknowledges however that the right to strike can be restricted or even prohibited in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees (Digest, op. cit., para. 533). Thus in the opinion of the Committee, strikes may be restricted or even prohibited in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (Digest, op. cit., para. 536). The Committee has, however, always considered that transport does not generally fall within the category of essential services (Digest, op. cit., para. 545).
4. 204. The Committee notes with concern that the combined effect of article 16 of the Act on procedures for settling collective labour disputes and Order No. 158 of the Cabinet of Ministers of 28 March 1995 is to make strikes in the transport sector unlawful, thereby violating freedom of association principles: article 16 prohibits strikes, inter alia, in enterprises where work stoppages endanger "the life and health of persons". Such enterprises include, according to Order No. 158, transport enterprises and in particular Minsk metro. In addition many other industries and services are included which are not essential in the Committee's view, such as for example radio and television or the petroleum sector (Digest, op. cit., para. 545).
5. 205. Moreover, the Committee notes that the legal provisions on strikes in the transport sector would also appear contradictory, thereby creating legal uncertainty: as outlined above, article 16 of the Act on settling labour disputes in conjunction with Order No. 158 make strikes in the transport sector unlawful. However, pursuant to article 13 of the same Act strikes in urban public transport are, if certain conditions are complied with, lawful.
6. 206. Hence the Committee notes that the present strike provisions in Belarus are both unduly restrictive and contradictory in nature. In these circumstances the Committee requests the Government to modify its legislation in such a fashion that transport workers unequivocally enjoy the right to strike. It requests the Government to repeal Order No. 158 of the Cabinet of Ministers of 28 March 1995 to the extent it includes organizations and enterprises not providing essential services as defined by the Committee. It reminds the Government that ILO technical assistance is at its disposal in this respect.
7. 207. In this context the Committee notes with satisfaction that the Constitutional Court declared paragraph 3 of Decree No. 336 unconstitutional. This paragraph provided that unions taking part in strikes at enterprises listed in Order No. 158 are to be dissolved, thus exposing unions to an extremely serious sanction, threatening their very existence. In this context, the Committee wishes to recall that imposing sanctions on unions for leading a legitimate strike is a grave violation of freedom of association principles.
8. 208. Furthermore, the Committee deplores that during and in the wake of the strikes in Minsk and in Gomyel, various actions were taken by the public authorities, targeted at participating unions and their members and leaders, in violation of freedom of association principles. In particular public authorities (a) suspended the activities of the Free Trade Union of Belarus and of a local union, (b) arrested and detained trade union members and leaders, (c) imposed short-term imprisonment on trade union leaders Messrs. Bykov, Konakh and Makarchuk in procedures violating due process, (d) violated union property and premises, (e) engaged in strike-breaking activities, (f) dismissed union members because of their participation in the strike, (g) threatened further criminal investigations, carrying potentially heavy financial and prison sentences, and (h) prevented a trade union leader from participating in trade union activities abroad.
   • (a) The suspension, by way of decree, of the activities of the Free Trade Union of Belarus and of the local organization of Minsk metro
9. 209. The Committee deplores that article 1 of Decree No. 336, which entered into force on 21 August while the strike was still under way, suspended, with immediate effect, the activities of the Free Trade Union of Belarus and of the local organization of Minsk metro. It notes with satisfaction that the Constitutional Court declared, on 8 October, this paragraph, together with others, to be unconstitutional. The Committee observes, however, that measures to implement Decree No. 336 had already been taken before the decision of the Court was handed down and that the information available does not show that all these measures have been subsequently withdrawn. In these circumstances, the Committee recalls, as was done by the Constitutional Court of Belarus, that the administrative suspension of trade union organizations constitutes a serious violation of freedom of association principles and violates Article 4 of Convention No. 87. Similarly, suspension by the executive branch of the Government acting in the exercise of legislative functions, as was done in this case, does not ensure the guarantees which the Committee considers essential (Digest, op. cit., para. 675). It shares the view of the Committee of Experts on the Application of Conventions and Recommendations that:
   • Dissolution or suspension as well as measures having equivalent effect, involve a serious risk of interference by the authorities in the very existence of organizations and should therefore be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. It is preferable for legislation not to allow dissolution or suspension of workers' and employers' organizations by administrative authority, but if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the ground for the administrative measure and, where appropriate, to rescind such measure; moreover the administrative decision should not take effect until a final decision is handed down. (General Survey on freedom of association and collective bargaining, 1994, para. 185.)
10. 210. The Committee also notes with satisfaction that article 2 of the said Decree, which obliged the Procurator's Office to file for the dissolution of the unions concerned, was declared unconstitutional by the Constitutional Court. However, the Committee expresses serious concern that it does not have any information on the follow-up given to the decision of the Court. The Committee urgently requests the Government to implement fully the decision of the Court and to keep it informed on the measures taken in this regard.
    • (b) Arrest and detention of trade union leaders and members
11. 211. The Committee deeply deplores that, in the course of the strike in Minsk, on 21 August, 23 trade unionists were arrested by special police forces while marching peacefully and without disturbing traffic to the headquarters of the Free Trade Union of Belarus and were subsequently detained for about 13 hours. Also on 21 August Mr. Antonchik was detained, and released on 23 August. The Committee wishes to restate the general principle that no one should be penalized for carrying out or attempting to carry out a legitimate strike (see 295th Report, Case No. 1755, para. 343). More specifically the use of police force should in these cases be limited to the maintenance of public order and not to restrict the legitimate exercise of the right to strike (see Digest, loc. cit., para. 581). In the present case the use of police forces clearly went beyond this limit since public order was not disturbed when the police force intervened. Hence the arrest and detention of 23 trade unionists was contrary to the principles of freedom of association. The Committee would therefore request the Government to refrain in future from using police force, in the context of a legitimate strike, for reasons other than maintaining public order.
    • (c) Imposition of short-term imprisonment on trade union leaders Messrs. Bykov, Macharchuk and Konakh
12. 212. The Committee equally deplores that Messrs. Bykov, Macharchuk and Konakh were sentenced to short-term imprisonment for exercising their right to strike, on the basis of administrative regulations concerning meetings, rallies and demonstrations and that they were denied due process and meted out harsh conditions of detention. It also understands that Mr. Bykov and Mr. Makarchuk were not always represented by an attorney of their choice and that their attorneys were not always given the time and facilities necessary for effectively organizing their defence.
13. 213. The Committee wishes to emphasize that the imprisonment of trade union leaders for activities connected with the exercise of their trade union rights - such as the right to strike - is contrary to the principles of freedom of association (see Digest, loc. cit., para. 69). It also recalls that detained trade unionists, like anyone else, should have the right to due process, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing. The Committee would therefore urgently request the Government to refrain in future from imprisoning trade unionists for organizing and/or participating in strike action and to guarantee due process to any trade unionist in proceedings against him/her.
    • (d) Violation of union property and premises
14. 214. The Committee regrets that, in the context of the strike in Minsk, the offices of SFB and of the Congress of Democratic Trade Unions were searched, telephones cut off and documents and other property removed. The Committee recalls that the search by police of trade union premises and the confiscation of union property, without proper warrant, constitutes a serious and unjustifiable interference in trade union activities (see 284th Report, Case No. 1642, para. 987). The Committee emphasizes that the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights (see Digest, loc. cit., para. 178).
15. 215. The Committee also regrets that the offices of the SFB and of the Congress of Democratic Trade Unions were sealed and that management, in application of Presidential Decree No. 336, closed local trade union offices and interrupted check-off facilities and that bank accounts of SFB were frozen, in violation of unions' property rights. The Committee considers that the closure of trade union offices, as a consequence of a legitimate strike, to be a violation of freedom of association principles and constitutes, if carried out by management, interference by an employer in the functioning of a workers' organization, prohibited under Article 2 of Convention No. 98.
16. 216. The Committee notes that, according to the Government, the activities of the Free Trade Union of Belarus have resumed and that its banking account has been reopened. In these circumstances the Committee expresses the strong hope that the Government has already taken all necessary measures to restore any union property taken from the searched office and reopened telephone lines. It also hopes that all closed local union offices have been reopened and that the check-off facilities of the Free Trade Union of Belarus have been made available again, in addition to having reopened the banking account of this union. The Committee urges the Government to refrain in future from having recourse to such actions.
    • (e) Strike-breaking activities
17. 217. The Committee regrets that, on 21 August, substitute drivers were brought in to drive Minsk metro trains and that police action was taken to make sure they could carry out their duties. In this context the Committee wishes to point out that the hiring of workers to break a strike in a service which is not an essential service in the strict sense of the term and hence one in which strikes may be forbidden, constitutes a serious violation of freedom of association (see 241st Report, Case No. 1282, para. 419). The Committee therefore requests the Government to refrain in the future from using substitute workers to break a strike.
    • (f) Dismissal of union members because of their participation in the strike
18. 218. The Committee deeply deplores that in both Minsk and Gomyel trade unionists who took part in the strike were dismissed. While it notes that three workers who participated in the strike in Minsk have meanwhile been reinstated, as a consequence of a court ruling, it regrets that many others have been denied reinstatement. The Committee emphasizes that the dismissal of workers for taking part in legitimate strike action constitutes anti-union discrimination in employment and it requests the Government to take the necessary measures, without delay, to assure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995.
    • (g) Criminal investigations
19. 219. The Committee regrets that further criminal proceedings are under way which might lead to the imposition of heavy monetary or prison penalties. The Committee, just as the Committee of Experts on the Application of Conventions and Recommendations, feels that the existence of heavy sanctions for strike action does not favour the development of stable and harmonious industrial relations (see General Survey, loc. cit., para. 177). Considering that the strikes in Minsk and Gomyel were in conformity with principles of freedom of association, the Committee requests the Government to take the necessary steps to have discontinued all criminal proceedings against the trade unions and the trade unionists involved in the strike in Minsk and Gomyel in August 1995.
    • (h) Participation in trade union activities abroad
20. 220. The Committee finally regrets that Mr. Bykov, the chairman of SFB, was prevented on 6 September 1995 from crossing the border into Poland to participate in an activity organized by NSZZ Solidarnosc. The Committee considers that trade unionists, just like all persons, should enjoy freedom of movement. In particular they should enjoy the right, subject to national legislation, which should not be such so as to violate freedom of association principles, to participate in trade union activities abroad. The Committee therefore requests the Government to assure that trade unionists can, in future, leave the country to participate in trade union activities abroad.
21. 221. The Committee welcomes that an inquiry is being carried out by the Procurator of the Republic concerning the legality of actions taken by the law enforcement bodies. However, considering that the questions raised by this case go beyond the mandate given to the Procurator of the Republic, the Committee would request the Government to immediately set up an independent commission of inquiry, the composition of which would have to be acceptable to all parties concerned, to clarify all the facts relating to this case. It also requests the Government to keep it informed of the conclusions arrived at by the Procurator of the Republic and by the commission of inquiry to be established in accordance with the recommendations of the Committee.

The Committee's recommendations

1. 222. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to modify its legislation in such a fashion that transport workers unequivocally enjoy the right to strike. It requests the Government to repeal Order No. 158 of the Cabinet of Ministers of 28 March 1995, to the extent it includes organizations and enterprises not providing essential services as defined by the Committee. It reminds the Government that ILO technical assistance is at its disposal in this respect and draws the legislative aspect of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
   • (b) The Committee requests the Government to refrain in future from using police force, in the context of a legitimate strike, for reasons other than maintaining public order.
   • (c) The Committee urgently requests the Government to refrain in future from imprisoning trade unionists for organizing and/or participating in strike action and to guarantee due process to any trade unionist in proceedings against him/her.
   • (d) The Committee expresses serious concern that it does not have any information on the follow-up given to the decision of the Constitutional Court which declared certain articles of Decree No. 336 to be unconstitutional. It therefore urges the Government to implement fully the decision of the Court and to keep it informed on the measures taken in this regard.
   • (e) The Committee expresses the strong hope that the Government has already taken all necessary measures to restore any union property taken from the searched offices and reopened telephone lines. It also hopes that all the offices of the local unions which had been closed have been reopened and that the check-off facilities of the Free Trade Union of Belarus have been made available again, in addition to having reopened the banking account of this union. The Committee urges the Government to refrain in future from having recourse to such actions.
   • (f) The Committee requests the Government to refrain, in the future, from using substitute workers to break a strike.
   • (g) The Committee emphasizes that the dismissal of workers for taking part in legitimate strike action constitutes anti-union discrimination in employment and it requests the Government to take the necessary measures, without delay, to assure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995.
   • (h) The Committee requests the Government to take the steps necessary to have discontinued all criminal proceedings against the trade unions and the trade unionists involved in the strikes in Minsk and Gomyel in August 1995.
   • (i) The Committee requests the Government to assure that trade unionists can, in future, leave the country to participate in trade union activities abroad.
   • (j) Considering that the questions raised by this case go beyond the mandate given to the Procurator of the Republic, the Committee requests the Government to immediately set up an independent commission of inquiry, the composition of which would have to be acceptable to all parties concerned, to clarify all the facts relating to this case.
   • (k) It also requests the Government to keep it informed of the conclusions arrived at by the Procurator of the Republic and by the commission of inquiry to be established in accordance with the recommendations of the Committee.