News / 20.02.19

Garry Pogonyailo: "parasite" Ordinance is unconstitutional

Garry Pogonyailo, the well-known lawyer and rights defender, the chairman of the legal commission of the Belarusian Helsinki Committee (BHC), has analyzed the provisions of the scandalous Ordinance No. 3 and gives grounds for its unconstitutionality and arguments in favour of the need to cancel it, the writes.

What is behind "parasite" Ordinances?

Ordinance No. 1 of January 25, 2018, which changed the wording of the notorious Ordinance No. 3 "On Parasites" of April 2, 2015, continued pursuing the general policy of President A. Lukashenko.

By declaring and guaranteeing the person's rights and freedoms, and by announcing them to be highest goals, the state has claimed responsibility for the enforcement and achievement of universal human values. These values include personal dignity, the right to free labour as the worthiest way of personal self-affirmation, a fair remuneration for one's labour at the level that ensures free and dignified existence of the employee and his/her family (Articles 2, 25, 41 and 42 of the Constitution). This was the idea, desire and aspiration of citizens of Belarus, when they adopted the Constitution – the Belarus' Basic Law.

However, by abusing his usurped right to issue ordinances, which have been declared above any codes, decrees and laws adopted by the parliament, Lukashenko has rebuilt all the power institutions, important for ensuring the constitutional goals, depriving them of, we can say, any autonomy, independence and representative democracy.

Prior to analyze the ill-memorable Ordinance No. 3 of April 2, 2015 (as amended by Ordinance No. 1 of January 25, 2018, "On Promoting Population' Employment"), I would like to remind you of Ordinance No. 7 of March 17, 1997 "On Additional Measures to Ensure Employment". For the first time, it introduced forced labour for the registered jobless persons. It envisaged that the payment of the miserable unemployment allowance was suspended if the person failed to perform the mandatory monthly amount of public works. In order to receive the allowance, citizens had to perform public works of cleaning streets and yards, going to work at farms, etc.), regardless of their qualifications. A limit was set in the directive manner for the country's army of jobless persons as 130,000 persons. After the enactment of the ordinance, many jobless people were forced to take their documents away from employment centres and lose some benefits: the inclusion of the registration period into the length of their service, paid sick leaves, etc. And as a result, latent unemployment was on the rise in the country.

In 2004, Ordinance No. 7 was no longer in force, but it was replaced by the Law of June 15, 2006 No. 125-Z "On Population's Employment", which reproduced Ordinance No. 7 in the part of mandatory public works. In case of failure for no valid reason, the employment centre could suspend paying the allowance, or remove the jobless person from registration (Articles 10 and 19 of the Law). The procedure for organizing paid public works is regulated by Resolution of the Council of Ministers No. 1716 of December 23, 2006. Both normative legal acts are still in force and retain the threat of forced labour.

By his ill-known Ordinance No. 29 of July 26, 1999, "On Additional Measures to Improve Labour Relations, and Strengthen Labour and Performance Discipline", President Lukashenko rewrote the then Labour Code, introduced many administrative penalties for minor misdemeanours, and transferred the absolute majority of employees into a fixed short-term-contract employment system. It made employees dependent on their employers; now, they are under a permanent threat of dismissal by non-renewal of their contracts. The contractual labour system has significantly limited the ability of employees and their trade unions to protect their interests. In my opinion, this system of pressure is widely used for the authorities' political interests. Many participants of mass actions, public and political activists who participated in election campaigns on the side of democratic candidates, were dismissed, blacklisted, and could not get employment for a long time. Some of them go abroad in search of work; others have found other forms of unregistered labour activity in Belarus, without paying the appropriate taxes, are looking for at least some legal ways to help their families.

When reporting in December 2016 on the measures to enforce Ordinance No. 3 of April 2, 2015, "On the Prevention of Social Dependency", the tax services, which were mainly in charge of collecting the stipulated fee in the amount of 20 basic units, reported that they had sent notifications ("letters of happiness") to 400,000 citizens, the so-called "social parasites". However, a wave of people's protests against the ordinance in February-March 2017 forced the president to suspend its ordinance.

At the same time, a "general labour mobilization" was announced. The aim of the renewed Ordinance No. 3, entitled "On Promoting Population's Employment", is to force "able-bodied citizens not employed in the national economy" to work legally or in any other way having the status that allows them to be regarded as employed in the country's economy. I specifically emphasize the highlighted word, since it is a key phrase in this context.

"Parasite" Ordinance means forced labour

The following principles should be in force in civil legal relations:

  • The honesty of the parties thereto: each of them should act in good faith and reason;

  • The rule of law: the need to act within the bounds of the Constitution and legislative acts adopted in accordance therewith; and

  • The freedom of agreement: citizens and legal entities are free to enter into agreements (contracts), any coercion to conclude one is allowed, except for the cases, when where the obligation to enter into a contract is provided for by the legislation or by a voluntarily taken obligation.

Citizens may not be forced to perform duties not provided for by the Constitution of the Republic of Belarus and its laws, or to waive their rights (Article 58 of the Constitution). This should be understood as follows: if we, citizens, are guaranteed free labour, it means that we have the right to choose: to work or not to work. The initiative and discretion (the right of free choice, which does not violate the rights and protected interests of other people and the state) in the exercise of this right and our interest belongs to us. We should freely make the decision to work without any coercion, threats and consequences that may worsen our legal status.

It is important to understand that the state, while guaranteeing the right to free labour, should ensure the legal regulation of relations not on the basis of generally binding norms and prohibitions, but in the form of various permissions and guidelines allowing the widest choice of a particular behaviour and, of course, of the interests precisely established by the law. In this sense, the state acts as a partner. If the state wants to implement any of its economic interests, or expediency, or the need to attract able-bodied people to some locality, to enterprises and types of employment, it should make use, through its employers, various incentives: increased wages, additional benefits, compensations, social packages, etc.

And what does the updated Ordinance № 3 offer?

Its idea is to divide able-bodied citizens into those employed in the economy and those not employed, that is, into good and bad citizens. It is proposed to use the "database of able-bodied citizens, not employed in the country's economy" (hereinafter – the database), which is operated by the Information Technology Centre of the Ministry of Labour and Social Protection of the Republic of Belarus. In fact, the earlier formed database of "parasites" and its software were transferred from the Ministry of Taxes and Dues to the Ministry of Labour, the current owner of the database. The mandatory collection from "parasites" of 20 basic units was replaced by payment for services "at the prices (tariffs) that ensure full compensation of economically reasonable costs for provision thereof" (Clause 5 of Ordinance No. 3).

Neither Ordinance No. 3, nor the relevant resolutions of the Council of Ministers (government) adopted in performance of the ordinance, contain legal definitions, criteria, references to norms of the legislation, which could define the order and procedure for placing able-bodied citizens into one category or another. Meanwhile, according to the Ministry of Labour, about 500,000 citizens are already in the database.

According to the National Statistics Committee ("Belstat"), as of November 2018, the labour force in Belarus amounted to 4.3517 million, of which 14,200 were jobless, registered at the employment centres, or 0.33% of the potentially existing workforce. We are a global leader again! Unfortunately, the truth is that the above 500,000 (or 11.5%) of those, not employed in the national economy give a real truthful picture of the unemployment army in the stagnant economy, the quantity and quality of those vacancies offered in the labour market that cannot interest anyone who wants to work and have enough income to maintain him/herself and the family. Instead of a market-based way of solving the supply/demand problem, we are offered a simple solution. Those from the database, who choose some participation in the economy, should confirm it by proper documents; and in this case they are excluded from the database. Thus, an unemployed person can get registered at the territorial employment centre, perform the prescribed amount of public works, and, in this case, according to the Resolution of the Council of Ministers No. 239 of March 31, 2018, he/she will be recognized as the person employed in the economy.

Those who remain in the status of "parasites", "parasites" are included in the list of "able-bodied citizens not employed in the economy who pay for services under increased tariffs." This list is formed by specially created commissions and approved by the relevant executive committee (local administration), and then transferred to respective utility services for enforcement.

The above commissions are entitled to make decisions:

  • On complete or partial citizens' relief from increased payments due to their difficult life situations that is, citizens must explain and prove why they are not working and not participating in the economy in the sense that bureaucrats had invented, and beg for leniency; and

  • On the need to send able-bodied non-working citizens, who lead an "asocial lifestyle" to activity therapy centres (known as LTPs), a kind of labour concentration camps in the modern sense.

Thus, the "order", established by the "new" Ordinance, is degrading human dignity, allowing administrative and material pressure on those "not participating in the economy"; the nature of the proposed paid public works, the failure perform which entail deprivation of the right to get the unemployment allowance; and sending people to LTPs can only be qualified as the practice prohibited by the Constitution and international documents on forced labour. While describing and evaluating the provisions of Ordinance No. 3, we, human rights defenders, proceed from the direct meaning of Article 2-1 of ILO Convention No. 29, in which the term "forced labour" means "any work or service required from anyone under threat of punishment and for which this person has not volunteered."

The burden of paying for the services provided to citizens "not participating in the economy", in excess of those tariffs established for others (we mean here the state-subsidized tariffs and services), should be treated as physical and psychological coercion under a threat of punishment of those, who failed to volunteer to participate in the economy. This participation is not a civil obligation of individuals and is not provided for by the Constitution.

Some time ago, the BHC conducted a legal study on forced labour in Belarus. It was sent to the government, relevant ministries and respective UN and ILO bodies. Stating gross violations of human rights in the sphere of labour relations and the use of forced labour, the BHC pointed to:

  • The practice of public works in violation of the requirements and principles of ILO Conventions Nos. 29 and 105;

  • Presidential Ordinance No. 18 of November 24, 2006 (with additions and changes) regarding the compulsory employment of parents in order to fully compensate the expenses spent by the state keeping the children taken away from them; and should they evade, on attracting them to criminal liability;

  • Law of January 4, 2010, No. 104-Z (with amendments and additions) regulating the procedures for sending citizens to LTPs;

  • Presidential Ordinance No. 9 of December 7, 2012, "On Additional Measures for the Development of the Woodworking Industry"; and

  • Presidential Ordinance No. 3 of April 2, 2015, "On the Prevention of Social Dependency"; and others.

The Government of Belarus took note of the report and recommendations of the UN Working Group on the preparation of the Universal Periodic Review of July 13, 2015, and expressed its readiness to comply with its provisions regarding the elimination of all forms of forced labour. They promised – and took up the old way.

As for the updated Ordinance No. 3, presidential jurists only veiled its most odious provisions with softer wording: "to maximize help to citizens in employment," "to stimulate employment," "re-socialize people leading the asocial lifestyle," "supporting entrepreneurial initiatives," "legalize labour activities", etc., while leaving the former essence and pursued goals: under the fear of increased utility bills and other administrative measures to compel able-bodied citizens, included into the database, to work for the economy; and another category – those leading the asocial lifestyle – to re-socialize, that is, take the path of correction, find a job, or choose a different form of legal participation in the economy. Otherwise, by the decision of a special commission, they will be sent to LTPs for compulsory medical treatment and labour rehabilitation.

By the way, in 2018, about 184,000 alcohol addicts were registered and monitored by respective dispensaries. Most of them are able-bodied persons, who fail to support the economy, and, therefore, candidates for LTPs. But is it possible to solve the nationwide problem of population's alcoholization by such barbaric methods and institutions, re-socialize them in such conditions and return patients to normal life? Years of experience show the extremely low efficiency of these, so to say, medical institutions (LTPs), which, however, are under the Ministry of Internal Affairs (MIA).

Any reasonable lawyer, trade union activist and just a normal citizen will come to the conclusion that the disposition to combat "parasites" enshrined in the Ordinance should be interpreted as introduction of forced labour.

The Ministry of Labour, which owns the database, would not disclose the details on the above categories of citizens "not engaged in the national economy: neither by the split by gender, nor by age, nor by education, labour qualification, and nor by place of residence (in cities or rural areas). Although the society should know these details to clearly understand what the main target group of the Ordinance is, and whether it is fair and justified. But even without these details, we can safely assume that the main target group is women.

According to the National Statistics Committee ("Belstat"), the 2009 census revealed the number of able-bodied, dependent individuals of 789,765 persons, of which women were 414,264, or 52.5 percent. The upcoming 2019 census will unlikely significantly change this share.

Many women are traditionally engaged in housekeeping and parenting. Those of them, who are raising one or two children older than 7 years, and are dependent on their husbands (other persons), have occurred in "parasite" lists. Meanwhile, in accordance with Part 3, Article 3, of the Marriage and Family Code of the Republic of Belarus, "parenting and housekeeping are socially useful works." Besides, the parenting and upbringing of children, and taking care of their health, development and training are parents' constitutional duties (Article 32 of the Constitution). Therefore, referring by the Ordinance such parents to the category of persons "not employed in the economy and having for services with full reimbursement of expenses" comes into conflict with this constitutional provision and encroaches on peoples' right to fully devote themselves their parental duties. Besides, the payment of utility bills at increased prices (tariffs) will put an additional burden on family budgets. Therefore, what kind of social mission of regulating the economic activities, public benefits and needs does the Ordinance talk? But, unfortunately, there are several such categories in the "parasite" database. "Without multiplying our sorrows," let's say what unites them: they are all law-abiding citizens of capable age, faced with a dilemma, who made a wrong choice, according to the Ordinance: they are "not involved in the economy," although they apparently have legal means to existence, unless proved otherwise. The dependency is one of these ways of existence; its sources this may be different – they are protected by privacy (Article 28 of the Constitution).

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