The human rights activists adduce 7 arguments why the Decree should be considered to be violating the Constitution and international treaties of the state, and why it should be abolished. The list of the violations includes not only a new form of forced labour, but also the encroachment on the right and obligation of the citizens to raise their children and take care of their aged parents, serious restrictions on the privacy and personal data protection, and misuse of the authority by the President.
Providing arguments to abolish the Decree on "parasites", RHRPA "Belarusian Helsinki Committee" asks the Parliament in its appeal to abolish the Decree or refer it to the Constitutional Court so it would give its opinion concerning the accordance of this act with the Constitution and international law acts ratified by the country.
Recall that the Decree #3 of the President of the Republic of Belarus on prevention of social parasitism, issued on April 2nd, 2015 (known in the public space as "the decree on parasites") stipulates that citizens of the Republic of Belarus, foreign citizens, and stateless persons who were granted permission to resident habitually in the Republic of Belarus, in case of their non-contribution to financing of public expenditure or contribution to such financing for less than 183 calendar days during the tax period, are considered to be payers of the public expenditure financing levy.
7 reasons why the Decree on "parasites" should be abolished: new form of forced labour; new logic of levies; misuse of presidential authority; offence against the possibility to perform constitutional obligations in respect of children and parents who are in need of help; restriction of a right to privacy and personal data protection.
The Decree on "parasites" introduces a new form of forced labour, though it tries to conceal it behind the wordings concerning the contribution to funding public expenditure. It contradicts the Constitution and international obligations of the state.
Forced labour is all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
It is the definition given by the International Labour Organisation.
Belarus has been a member of the ILO since 1954.
The article 41 of the Constitution stipulated that the citizens of the Republic of Belarus shall be guaranteed the right to work as the worthiest means of an individual's self-assertion, that is, the right to choose profession, type of occupation and work in accordance with his vocation, capabilities, education and professional training, and with regard to social needs, and the right to healthy and safe working conditions. According to this very article, forced labour is prohibited. The analogous prohibition is stipulated in the article 13 of the Labor Code. Thus the content of the article 41 of the Constitution along with other guarantees of rights and freedoms enables us to hold that the citizens are guaranteed the right to free labour together with the right of any able-bodied citizen not to work.
As a member of the ILO, Belarus has ratified the Convention 29 concerning forced labour in 1956, and the Convention 105 concerning abolition of forced labour. These conventions impose obligations on the member states to implement their stipulations.
In 1973 Belarus ratified both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. According to the article 8 of the International Covenant on Civil and Political Rights, "no one shall be required to perform forced or compulsory labour". The article 6 of the International Covenant on Economic, Social and Cultural Rights stipulates that everyone has right "to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right."
The Decree on "parasites" introduces a new logic of levies: not for performing certain activities for a man by the state, but for the sole fact that a man resides in a country's territory for more than 183 days and may theoretically receive some goods
The Decree operates with such terms as obligation "to contribute to funding public expenditure", which are stipulated in the article 56 of the Constitution (discharge of state taxes, duties, and other payments).
In this case we have a substitution of notions. The Constitution and the Tax Code refer to obligatory discharge of state taxes from taxable bases when performing certain activities. discharge of duties of established rate, or other payments and fees for carrying out legally relevant actions by the state for the benefit of citizens (services). For example, state duty for the resort to the court, notarial office, customs payments, registration dues, etc.
It is difficult to find and define components the levy has been imposed on. This levy does not fit into any legal framework, established in world practice, for the reasoning of necessity to levy taxes, duties, and other special-purpose payments.
The President issued the Decree misusing his authority
According to the law, Decrees of the President of the Republic of Belarus may be of two kinds: decrees issued on the ground of the law on delegation of legislative authority to the President of the Republic of Belarus, and temporary decrees. Since the parliament did not delegate the authority to issue the Decree #3 to the President, this decree is a temporary one.
According to the part 3 of the article 101 of the Constitution, temporary decrees are only issued out of special necessity. But the preamble of the Decree does not stipulate any special necessity that may have dictated its issuance.
The official text of the Decree was published on April 2nd, 2015 (came into effect), and its effect was extended to the January 1st, 2015. According to the article 101 of the Constitution, President has no right to issue retroactive regulations. The prohibition against the retroactive effect of the law is also stipulated in the part 6 of the article 104 of the Constitution and the article 67 of the law on regulatory legal acts of the Republic of Belarus.
The president has no right to restrict constitutional rights and freedoms of the citizens. The Decree on "parasites" introduces evident restrictions which are in fact forced or compulsory labour, that is labour based not on labour being voluntarily offered by a citizen himself, but on the requirement imposed on him to perform the labour under the threat of repressions in form of an additional kevy, its nonpayment carrying administrative punishment (a fine of 2 to 4 base values or administrative detention).
The state imposes the obligation to contribute to funding public expenditure on the non-citizens, who are guaranteed much less rights and social benefits than citizens
The article 56 of the Constitution obliges solely the citizens to contribute to funding public expenditure. That makes sense because, according to the Constitution, it is the citizens whose rights and freedoms are secured by the state, including the right to move freely and choose the place of residence, the right to receive, store and divulge information, the right to participate in settlement of state affairs, the right to free health care, the right to social security in old age, the right to housing, etc.
In violation of the constitutional requirements, the decree imposes the obligation to contribute to funding public expenditure on foreign citizens and stateless persons who obtained a permit to resident habitually in the Republic of Belarus, such people being guaranteed much less rights and social benefits than citizens.
The Decree on "parasites" encroaches on the opportunity to execute in full measure the constitutional obligation of parents
The Decree obliges to pay the tax on the nonworking parents who are raising a child (one or two) at the age 7 through 18. Even in the USSR, mother (father) were able not to work and raise children before they would be 14-year-old. This age was linked with the fact that children would be able to serve themselves without assistance, make simple bargains, and bring responsibility, including criminal one. Parents are obliged to raise their children and to take care of their health, development and education (article 32 of the Constitution). The Decree encroaches on the opportunity to execute in full measure this constitutional obligation of parents.
The Decree on "parasites" encroaches on the possibility to execute in full measure the constitutional obligation of the grown children whose parents are in need of help
The article 32 of the Constitution stipulates that children are obliged to take care of their parents. The article 100 of the Marriage and Family Code defines this regulation more precisely stipulating that support of disabled parents who are in need of help, is an obligation of their adult able-bodied children. The decree provides no case in which children can be liberated from the levy for the contribution to funding public expenditure, if they execute their constitutional obligation to take care of their parents and provide care for their disabled parents who are in need of help, including those who have disability.
The Decree on "parasites" restricts the right to privacy and personal data protection severely
The Decree stipulates that personal data collection, processing, storage and usage for the purposes of the decree, are carried out without the written consent of a person. Personal data, according to the content of the decree, can be accessed by a wide circle of officials of various state bodies and organisations. This can lead to the unsanctioned divulgence of the information. The decree stipulates no serious guarantees of the protection of personal data that can be used for the purposes of the decree, and provides no instructions to state bodies concerning additional guarantees and steps aimed at the protection of personal data, including the normative ones.