In the present opinion normative-legal acts, presented by the state for open use, are being analyzed.
The present independent public legal expertise has been conducted by the decision of Rada of Republic Human Rights Public Association “Belarusian Helsinki Committee” (hereinafter referred to as BHC) from November, 29 2007 on the ground of passage 2 of point 2.4 of BHC Statute (as in force from 8.05.2007).
The subject of the expertise is the inspection of the conformity of legislative acts of the Republic of Belarus to the norms of The Constitution of the Republic of Belarus and international treaties, signed by Belarus, which prohibit forced labour.
Republic Belarus is a member of International labour organization (ILO) from 1954. As a member of ILO the state has ratified Convention № 29 on forced labour from June, 30 1956 and Convention № 105 on the abolition of forced labour (1957). The mentioned Conventions impose obligations on the states-members to carry out its provisions.
According to point 1 of article 2 of Convention № 29 term “forced labour or compulsory labour” means any kind of work or service, which is demanded from a person under the threat of any punishment and for which a person has not offered his/her services on a voluntary basis.
Nevertheless, term “forced labour or compulsory labour” does not include:
a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character;
b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;
c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations
d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;
e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.
Moreover, there is ban on the use of forced labour in sub-point “a” of point 3 of article 8 of International Covenant on Civil and Political Rights. It is stated in it: “No one shall be required to perform forced or compulsory labour”. And in point 1 of article 6 of the International Covenant on economical, social and cultural rights the right of every person for “to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right”. Both of them were ratified by Belarus on November, 12 1973.
According to the rules, specified in part 2 of article 6 of Civil code, part 2 of article 15 of Law “About international treaties of the Republic of Belarus”, part 2 of article 20 of Law “About normative legal acts of the Republic of Belarus”, after the effectiveness of the acts about the ratification of international treaties of the Republic of Belarus their norms become part of the active legislation on the territory of Belarus, which is compulsory for implementation.
The Republic of Belarus indicated the mentioned rules of the international norms about the forced labour ban in the Basic law- The Constitution and in the Labour code (hereinafter referred to as LC). For ex., it is declared in the Constitution, that “forced labour is prohibited, with the exception of work or service, specified by the court sentence or by the state of martial or emergency law”.
The same ban is specified in article 13 of the LC. At the same time, according to the implementation of the international norms about the ban of forced labour into the national legislation, part 2 of the mentioned article specifies the corresponding norms of Convention of the International Labour Organization № 105, which are of the same sense and content, taking into account article 14 of the LC about the ban of labour discrimination.
Specifying and explaining the content of part 4 of article 41 of the Constitution, the legislator identified, what is “not considered forced labour”, in part 3 of article 13of the LC:
1) work, carried out in the result of the court sentence, which took effect, under the supervision of the state bodies, responsible for the legality observance while executing court sentences;
2) work, grounded by the legislation about the military service or case of emergency”.
According to part 4 of article 8 of the LC of the Republic of Belarus, in the case, when other rules, than the provided by the labour legislation of the Republic of Belarus, are specified in the international treaties or the convention of the International Labour Organization, signed by Belarus, the rules of international treaty or a convention are used.
When analyzing objectively the given above norms about the ban of the forced labour, one can come to a conclusion, that the Republic of Belarus has implemented the international obligations about the ban on the forced labour.
Nevertheless, after analyzing other legislative acts and the established practice, one should admit, that the mentioned bans in the Republic of Belarus have not been removed and the forced labour is used, for example, in the Armed forces and in the part of young specialists’ compulsory work placement.
According to the Law of the Republic of Belarus “About military obligation and military service ”(from 20.07.2007) military service is the basic type of military work, grounding on the implementation of the military obligation (the constitutional duty of the protection of the Republic of Belarus) by the citizens within the Military forces and other military structures. There are no prerequisites for the legalization of the forced labour in the mentioned Law. At the same time, according to point 4 of article 8 of the Law of the Republic of Belarus “About the status of the military personnel” (from 22.03.1995 № 3685- XII), “the undertaking of work and other duties, not specified within the military service, by the military personnel at the time of the military service” is accepted. By its order from November, 29 2004 №71 the Ministry of defense of the Republic of Belarus adopted the Instruction about the order of involvement of the military personnel of the Military forces of the Republic of Belarus in the work and other duties, not specified within the military service, at the time of military service (hereinafter referred to as the Instruction). As follows from the name of the Instruction, it is implemented “…to the work and other duties, not specified within the military service”, that is the work, not specified in the stipulation, containing in sub-point “a” of point 2 of Convention of ILO № 29.
According to point 2 of the mentioned Instruction the military personnel can be attracted to the work (services) or implementation of other duties, in the period of the military service, on condition, that the grounded necessity of the mentioned work implementation exists and the safe conditions of work are respected with the aim:
1) to implement work for the needs of a structure of a military department, unit, military educational establishment, organization of the Ministry of defense of the Republic of Belarus (hereinafter referred to as the military unit);
2) to perfect special training;
3) to run national activities (including celebration of national and other holidays);
4) to fight fires and natural disasters or help the population, suffered from fire of natural disaster;
5) to administer paid services (work);
6) other implementation of duties, specified in the acts of legislation of the Republic of Belarus.
Commercial (not military) character of the work (services), specified in point 5, is confirmed by the content of point 11 of the Instruction about the direction of the report on subordination with the justification of the reasonability of work implementation with the consideration of the material expenses of the military unit in connection with the work implementation, as well as the planned financial and material means, with the attachment of the report project and the protocol of the price harmonization. On receiving the permission of the Ministry to implement the work, the commander of the military unit issues the corresponding order and, if necessary, concludes civil-legal treaty on its implementation with the managing party (point 13 of the Instruction).
The similar norms are introduced for the transport forces of the Republic of Belarus. According to point 20 of the Regulation of the transport forces of the Republic of Belarus, confirmed by the Decree of the President of the Republic of Belarus from May, 10 2006 № 312 (hereinafter referred to as the Regulation), the transport forces can implement on an onerous basis work (services) and other treaty obligations in the order, specified by the legislation of the Republic of Belarus. The order and conditions of the organization of paid services provision and involvement of the military personnel in the work, not specified within the military service, are provided by the order of the Minister of defense of the Republic of Belarus from June, 29 2007 № 553 “About the adoption of the Concept of paid services provision in the Military Forces”. According to point 13 of the attachment № 2 to the order transport forces are allowed to produce construction-erection work, implemented by the structural subdivisions o civil-legal treaties with the managing partisan an onerous basis.
At the same time, one should take into consideration, that military personnel of the statutory service is directed to work according to the order of the military unit headquarters and implement the work not on a voluntary basis, but under the fear of punishment for the non-implementation of the order. The payment of construction and other types of work (services) is not provided by the legislation of the Republic of Belarus. The earned by such a way financial means after the reimbursement of all the costs, connected with its implementation, payment of the obligatory payments to the budget, are used by the Ministry of defense for specified aims, including the perfection of the material-technical basis of the forces, along with the budget assignments, and not for the payment of the military personnel’s work. Consequently, the involvement of the military personnel in the work, not specified within the military services, at the time of military service does not fall under sub-point “a” of point 2 of article 2 of Convention of ILO № 29 and can be evidence of the use of forced labour in the military structures of the Ministry of defense of the Republic of Belarus. The indicators of the forced labour under the described above circumstances are the following:
1) military personnel act by the order of the commander (are obliged… “to carry out orders of the commanders unquestioningly and in time”- passage 6 of part 2 of 20 of Law “About the status of the military personnel”);
2) military personnel carry out work (services), not specified within the military service (the constitutional duty of defense of the Republic of Belarus);
3) their work is not voluntary;
4) they do not receive payment for their work.
On April, 2 1997 the Council of Ministers of the Republic of Belarus adopted special resolution № 276 about the placement of young specialists. In March, 2002 obligatory placement of the graduates was fixed in new version of Law “About education”. In accordance with article 10 of the mentioned Law, “graduates, studying day-time on a fee-free basis in educational establishments, providing professional-technical, special and higher education, are placed in the order, specified by the Government of the Republic of Belarus”. Such an order is currently fixed by Regulation about the placement of graduates of educational establishments, specified by the Resolution of the Council of Ministers from 10.12.2007 № 1702 (hereinafter referred to as the Regulation).
Young specialists are obliged to work at the place, where they have been sent by the special commission, for one year-for those with professional-technical education, and two years- with special or higher education. According to the Regulation young specialist on the grounds of the certificate of the direction to workplace is obliged to come to the stated workplace and work there during the sated period of time.
The employers, independently from their type of property, are prohibited to employ young specialists- the graduates of educational establishments- without the certificate of the direction to workplace and fire them before the sated date, with the exception of dismissal on the initiative of the employer or the guilty actions.
When it comes to legal grounds for the conclusion of a labour treaty (contract), the obligatory for implementation certificate of the direction to workplace serves as the grounds, not the will of the employee- the young specialist- or the agreement of the parties. Such a certificate serves as a document of strict accounting. Here it does not concern only the direction of young specialists to the areas, suffered from the Chernobyl disaster. Such a placement is conducted on the entire territory of the Republic of Belarus at the request of an organization for the needed amount of the workers, specialists.
Placement and employment of the young specialists is controlled by the state bodies, subordinate or accountable to the President of the Republic of Belarus, republican bodies of state governance and other structures, to the Government of the Republic of Belarus, local executive bodies, having subordinate educational establishments ( point 6 of the Regulation). The order of appeal of the commission’s decisions, including in courts, is not specified.
On September, 23 2006 by the Resolution of the Council of Ministers № 1255 the Regulation about the reimbursement of the means, spent on the education of the worker (employee), specialist, to the republican and (or) local budgets was adopted. According to point 2 of the selected Regulation, “the reimbursement of the means, spent on the education of the worker (employee), specialist, is conducted by the graduates of educational establishments, who received professional-technical, special or higher day-time education on a fee-free basis, including on the grounds of treaties of the targeted education of the qualified workers (employees) and specialists, and were directed to workplace (young specialists), if they have not worked for one year- for those who received professional-technical education, and for two years- for those, who received special or higher education”. These rules were legalized by the amendments to Law “About education”, adopted on June, 12 2006.
Consequently, a student, who passed the competition and got his right for fee-free education, is obliged after graduation to work at a certain place during the established by the legislation period. Otherwise, he has to pay for his education. As we se it, the obligation to work at a certain place is nothing but the obligation to present the counter concession for education (part 1 of article 393 of Civil Code). This circumstance, as well as the demand to reimburse the means, spent on education (let it even be only in case of non-conduction of such an obligation) gives us grounds to state, that such a form of education acquisition is originally paying in its nature.
Similar norms are specified in Law “About higher education”, adopted on June, 12 2007 (entered into force 16.01.2008). One should mention, that in article 4 of the selected Law, which fixed the right for higher education, it no longer concerns the guaranteed by the Constitution right for fee-free higher education on a competitive basis.
Thus, Belarus, after implementing the institute of forced placement of young specialists (here it does not concern the graduates, received education under the treaty of targeted education), came back to the practice of planned education and placement of the graduates according to the needs of production. In point 2 of the Regulation of the placement of graduates of educational establishments, adopted by the resolution of the Council of Ministers of the Republic of Belarus from 10.12.2007 № 1702, it is clearly stated, that “placement of graduates is conducted by the educational establishments with the aim of satisfaction of the needs of economic and social branches in specialists, workers… ”.
After considering the appeal of Republican youth public association “Zadzinochanne belaruskih studentau” of the ground of article 40 of the Constitution and part 1 of article 116 of the Constitution, the Constitutional court of the Republic of Belarus in its decision from August, 30 2006 admitted as well, that placement of the graduates of higher and special educational establishments with the exception of paying students, was introduced “with the aim of improving personnel provision in the core branches of economy of the Republic of Belarus”, that “personal placement of young specialists in the present conditions is a forced step of the state, reasoned to some extend by difficulties of the transitional period”.
At the same time the Constitutional court pointed, that principles of personnel provision should be in the perspective based on a more full combination of the interests of state, society and graduates of educational establishments, their effective use subject to the received speciality, securing of such conditions of work and accommodation, which would rerally stimulate employment of young specialists in regions without forced placement by employers, bodies of local government and self-government and state. But such recommendations are no realized by the state.
The stated above proves, that normative rules about forced labour of young specialists, directed to work, do not fall under the clauses of point 2 of article 2 of Convention of ILO № 29.
In the described above conditions work within compulsory placement acquires characteristics of forced labour, which clearly contradicts part 4 of article 41 of the Constitution and article 13 of the Labour Code and international obligations of the Republic of Belarus.
Placement is used by the state as a method of mobilization and labour force for the needs of economical development of the state and its regions without voluntary initiative from the young specialists. Obligatory work is conducted under the fear of punishment, which appears as demand to compensate the means, spent on education.
At the same time, one should take into consideration, that article 281 of the Labour Code of the Republic of Belarus, guarantying the first workplace to the graduates of state educational establishments, does not provide for and does not force young specialists to compulsory work within the stated period with such civil-legal responsibility for its non-conduction, as pay-off of the financial means, spent on their education. That means, that there is no fixed compulsion to carry out such duties and no reference rule in the selected article.
Thereby, obligatory work within the stated period of time by the graduates of educational establishments on the grounds of certificates of direction to workplace corresponds, in our view, to the legal sense of term “forced or compulsory labour”, meaning in accordance with point 1 of article 2 of Convention of ILO № 29 «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».
Disputable norms of legislation and law enforcement practice of the compulsory placement of graduates violates obligations of the Republic of Belarus according to Convention № 105. In accordance with article 1 of the mentioned Convention, any of its members undertakes to suppress and not to make use of any form of forced or compulsory labour:
(a) as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
(b) as a method of mobilising and using labour for purposes of economic development;
(c) as a means of labour discipline;
(d) as a punishment for having participated in strikes;
(e) as a means of racial, social, national or religious discrimination.
Law of the Republic of Belarus from 19.07.2005 № 37-З “About the introduction of amendments to some legislative acts of the Republic of Belarus on the questions of reimbursement of the means, spent on the keeping of children under the state support” (in the edition of Law of the Republic of Belarus from 15.06.2006 г. № 125-З) introduces corresponding changes adn additions into Labour Code, Code of the Republic of Belarus about marriage and family (hereinafter referred to as CaMF), Civil procedural Code of the Republic of Belarus (hereinafter referred to as CPC), Criminal Code of the Republic of Belarus (hereinafter referred to as CC).
The stated changes introduced the practice of full reimbursement of the means, spent by the state on keeping the children under the state support, as well as liability for the evasion of such responsibilities, specified in the legislation of the Republic of Belarus for the evasion. According to article 93 of CaMF in its new edition, “parents, deprived of parental rights, parents, whose children were taken away without parental rights deprivation, parents, recognized as partially sane, parents, wanted by the police, parents, who are for the time being in activity therapy centres or in custody, parents, who have been located in places of deprivation of liberty, restriction of liberty or arrest fully reimburse the means, spent by the state on keeping of children for the whole period of keeping children under the state support in children orphanage establishments (kid houses, orphanages, schools- orphanages, special educational establishments, special medical-educational establishments and other establishments, providing children keeping and up-bringing), in state specialized establishments for the juvenile in need of social support and rehabilitation, in state establishments, providing acquisition of professional-technical, special, higher education, in orphanages of family type, in children villages, tutorial families, foster homes”. The size and composition of the means are established by the Government of the Republic of Belarus.
The means for the reimbursement of the state expenses on keeping of children under the state support (hereinafter referred to as expenses) are transferred to the budget, which finances kid orphanage establishments, state specialized establishments for the juvenile in need of social support and rehabilitation, state establishments, providing acquisition of professional-technical, special, higher education, or are used for monthly payments on the children (orphanages of family type, in children villages, tutorial families, foster homes).
According to part 5 of article 11 of Law of the Republic of Belarus “About employment of population of the Republic of Belarus” from June, 15 2006 № 125-З (with amendments from 29.12.2006) “the state provides employment of the parents, who are obliged to reimburse the expenses, spent by the state on the keeping of children under the state support, and who have been directed by the decision of court to the bodies of state service of employment by means of establishing reservation of their future workplaces”.
Point 1 of part 1 of article 16 of the Labour Code (Prohibition of the unreasoned refusal to the citizens in concluding a labour treaty) is supplemented by the provision about inclusion in the reservation the citizens, obliged to reimburse the expenses, spent by the state on the keeping of children under the state support, who were directed to work by the state employment services.
The unemployed, as well as the employed obliged persons, who reimburse the expenses on the keeping of children not in full, are subject to the employment in the order, specified in point 14 of the Decree of the President of the Republic of Belarus from 24.11.2006 № 18, with the aim to guarantee the implementation of the duties of keeping and up-bringing of their children.
The questions of the employment of the obliged persons are resolved by the court in the decision about the court order about the exaction of the expenses on keeping of the children, decision about the deprivation of parental rights, taking away the children without the deprivation of parental rights. The court decision about the employment of the obliged persons is a ground for the dismissal of the person from the previous workplace according to point 5 of article 44 of the Labour Code.
In case of the need for employment of the obliged person, who have been in an activity therapy centre or who have been released from the places of deprivation of liberty, the administration of the activity therapy centre or the establishment of criminal-executive system of the Ministry of inner affairs is obliged within 3 months after the termination of the period of his stay (liberation) to inform about it the court of the area of permanent accommodation of the obliged person, as well as the bodies of inner affairs and the bodies of state service of employment, and to direct at the day of the person’s liberation the executive document to the court.
In the stated cases the obliged persons, subjected to employment, are appointed personnel of the activity therapy centre or the criminal-executive establishment of the system of the Ministry of inner affairs to look after. The employment of such persons is conducted on the grounds of the court decision, issued with the aims of securing of the carrying out of the executive measures. The corresponding decision of the court must be issued within 5 working days from the day of receiving the executive document by the court (point 13 of the Decree from 24.11.2006 № 18).
The rule of court about the employment of the obliged person within 3 working days after its issue is directed to the bodies of inner affairs and the bodies of state service of employment in the area of permanent accommodation of the obliged person, and if the address of permanent accommodation is not known- in the area of court residence- for choosing the organization with the aim of his employment and is subject to immediate execution. The bodies of the state service of employment are obliged within 3 working days to find one or more organizations for the employment of the obliged person. The choosing of an organization (organizations) is conducted in such a way, that the wage of the obliged person allows him to monthly pay the expenses on the keeping of children and he is left no less than 30 percent of the wage.
The obliged person has to come to the organization and start working no later than on the day after he got the direction from the body of the state service of employment. The employment of the person, obliged to the employment by the decision of court, is conducted on the grounds of the direction of the body of the state service of employment.
The presence of the unemployed obliged persons in the bodies of the state service of employment and at the workplace is secured by the bodies of inner affairs. The refusal of the employers to employ the obliged persons, directed to them by the state service of employment, and of the obliged persons to carry out the work is not accepted.
According to part 7 of point 14 of Decree № 18 legislation about social insurance, pension legislation, labour legislation, with the exception of the right for the provision of work in compiance with the education and professional preparation, as well as the right on the length of the labour holidays, fixed by the legislation (the selected persons have the right for labour holidays with the duration of 7 calendar days) applies to the persons, employed in accordance with the decision of court.
Control over the day-to-day presence of the obliged persons at their workplace is carried out by the employers together with the bodies of the inner affairs and the bodies of the state service of employment. The organizations, where the obliged persons work, have to inform the court, executing the court decision or the executive inscription of the notary, the bodies of inner affairs about the systematical non-presence of the selected persons at their workplace, if all the possible measures to ensure the presence at the workplace and execution of the work responsibilities are exhausted.
The work of the obliged persons, carried out on the grounds of the court decision, is over after the full reimbursement of the expenses on the keeping of children or after self-employment of the persons with the wage, exceeding the wage at the provided workplace.
The stated above order of the forced employment of “unconscientious” parents is detailed in the Provision about the employment of parents, obliged to reimburse the expenses, spent by the state on the keeping of children under the state support, adopted by the Resolution of the Council of Ministers of the Republic of Belarus from 26.01.2007 г. № 105. The selected provision, particularly, foresees, that the organizations, selected by the regional executive committee together with the Minsk regional executive committee, provide information about the vacancies with the specification of wage for the obliged persons (point 6) to the bodies of state service of employment very month before the 1-st day of the following month; the employment of the obliged persons is conducted on the grounds of the direction to workplace, issued by the body of the state service of employment (point 8).
The amendments to article 174 of the Criminal Code introduced criminal responsibility for the parents, evading from the payment, specified by the court decision, of the means for the reimbursement of the expenses, spent by the state on the keeping of children under the state support for more than 3 months.
Sanctions of part 1 of the selected article provide such punishment, as disciplinary work for the period of up to 2 years or personal restraint up to 3 years. Part 2 of the same article provides personal restraint for the period of up to 4 years as well.
According to Decree № 18, the obligation to reimburse the expenses on keeping the children arises from the day of placement of a child on the state support and is over after their full compensation or in the case of death of the parents or by the decision of court under the circumstances, resulting in the liberation from the reimbursement of the expenses on the keeping of children.
The described cases of the labour of persons, obliged to reimburse the expenses on the keeping of children under the state support, do not fall under the clauses, specified in point 2 of article 2 of Convention of ILO № 29, contradict part 4 of article 41 of the Constitution, article 13 of the Labour Code and should be qualified as forced labour.
Law of the Republic of Belarus from 21.06.1991 “About measures of forced influence on chronic alcoholics and drug addicts, systematically violating public order or the rights of other persons” (in the edition of 13.07.2000) fixes, that “chronic alcoholics and drug addicts are obliged to go through treatment in medical-preventive establishments of public health services. Chronic alcoholics and drug addicts, who by their conduct, affected by alcohol or drugs abuse, systematically violate public order or the rights of other persons, can be compulsory isolated for the period of 1 to 1,5 years by the decision of region (city) court in activity therapy centres for their medical-social re-adaptation with the conduct of compulsory work”.
Resolution of the Ministry of inner affairs of the Republic of Belarus from 09.10.2007 № 264 established the Inner regulations in activity therapy centres of the Ministry of inner affairs of the Republic of Belarus (hereinafter referred to as the Regulations). Persons, being treated in activity therapy centres (hereinafter referred to as ATC), according to the Regulations are obliged to work at the industrial objects on the direction of the administration of ATC and keep to the rules of safety measures (point 26.18). The conditions of work of the persons in ATC are regulated by the legislation subject to peculiarities, connected with their staying in ATC. The following legislations do not refer to them: about the labour treaty; about the collective treaty; about the part-time working day; about keeping the same wage in case of transfer to another work with a lower wage; about the labour staff of an enterprise; about the guarantees to the workers for the time of implementing state or public obligations; about disciplinary responsibility of the workers.
For the violation of the Regulations, including refusal to carry out the work, the following measures of penalty are administered in terms of the person, staying in ATC: warning, admonition, placement in the isolation ward for the period of up to 10 days.
Even not taking into consideration unconstitutionality of the forced direction to ATC for the curing of alcoholism and drugs addiction, the use of the labour of persons, placed in ATC, is the evidence of its forced character.
The evidence of forced labour is the following:
1) the persons are placed in ATC on the grounds of the court decision, and not of the sentence for the conduct of a criminal act;
2) the persons are attracted to work not on a voluntary basis, but on a compulsory basis;
3) basic guarantees, provided by the labour legislation to the employee, do not apply to the selected persons;
4) the work is implemented under the fear of violence ( article 13 of the Labour Code);
5) the work is not specified in the legislation about the military service or by force-majeure ( part 4 of article 14 of the Constitution).
Under such circumstances involvement of persons in the obligatory work in ATC falls under term “forced or compulsory labour”, which according to point 1 of article 2 of Convention of ILO № 29 means any kind of work or service, which is demanded from a person under the threat of any punishment and for which a person has not offered his/her services on a voluntary basis. The labour of the persons in ATC is used with the aim of upbringing (point “a” of article 1 of Convention of ILO № 105) and does not fall under the clauses, specified in Convention of ILO № 29.
After ratifying Convention of ILO № 105 the Republic of Belarus undertook responsibility to assume effective measures for immediate and full abolition of all types of forced and compulsory labour, that are specified in article 1 of the Convention. But forced labour is used in the Republic of Belarus. At the same time, we consider, that the state dos not have sufficient arguments to be sure, that restriction of the right for free labour and the introduction of forced labour can be for the time being accepted in accordance with article 23 of the Constitution in the interest of national security, public order, defense of morality, health of the population, the rights and freedoms of other people. At least, there are no arguments for such restrictions in the analyzed legislation.
When considering such disputes the court should be guided by articles 7,8,112,137 of the Constitution of the Republic of Belarus, part 4 of article 8 of the Labour Code, as well as by the demands of the Plenum of the Supreme Court of the Republic of Belarus, specified in the resolution from September, 28 2001 № 10 “About the decision of trial court”. In point 2 of the selected resolution it is stated, that “norms of law, specified in the international treaties, ratified by the Republic of Belarus, are executed by the courts in accordance with the provisions of article 20 of Law of the Republic of Belarus from January, 10 2000 “About normative legal acts of the Republic of Belarus”. If the court comes to the conclusion, that the normative act, subject to application when considering the given case, contradicts the Constitution of the Republic of Belarus, it administers the corresponding norm of the Constitution. After the decision enters into legal force, the court, that issued the decision, addresses the Supreme Court of the Republic of Belarus with the question of offering a suggestion to the Constitutional Court of the Republic of Belarus about checking the compliance of the normative act to the Constitution of the Republic of Belarus (articles 112, 116 of the Constitution)”.
In accordance with the Charter and the procedures of ILO it is possible to direct a complaint to the Administrative council with the request to investigate the cases of forced labour in the Republic of Belarus.