Are obliged persons second-class citizens?

2015 2015-09-08T14:04:55+0300 2015-09-08T15:43:00+0300 en The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”
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The list of the limitation of the rights of so-called “obliged persons” – those who are obliged to reimburse the costs of upbringing of their children in certain cases (if the children are taken from them on decision of the Commission on Juvenile Affairs without deprivation of parental rights; deprivation of parental rights; their placement in activity-therapy centers, remand prisons) is quite extensive.

The obliged persons are prohibited to sell their real estate and vehicles. Unemployed and employed obliged persons are required to reimburse the costs associated with the upbringing their children on a voluntary basis on their own application. If they are unable to do so, they must be subject to forced recruitment. They can be evicted from their own premises for lending them. The appropriate seal is put in the passport of the obliged person.

Administrative punishment for the persons who evade from employment under court ruling, was established back in 2010: evasion from such employment by the parents who are obliged to reimburse the expenses spent by the state for the upbringing of their children, which resulted in the full or partial failure to fulfill the monthly obligations for reimbursement of such expenses, or evasion from work – entailed a no alternative penalty, administrative arrest. Evasion from employment under a court ruling included evading from appearance in the agencies for employment and social protection or other organization for employment, undergoing a medical examination, receiving the documents, necessary for employment, as well as other faulty action (inaction), resulting in the failure to comply with the court ruling for the employment.

This articles of the Code of Administrative Violations was virtually inactive in this edition, and was amended in January 2015, as a result of which people started being punished for absence at work during the working hours without a valid reason. For the first seven months of 2015 there were registered 8,495 cases of punishment under this article, which was 2221% compared to the previous year.

The HRC "Viasna" and the International Federation for Human Rights (FIDH) have repeatedly noted in their reports the illegality of forced labor of the obliged persons, and it would be difficult to say something new about it, except for comparing the degree of protection of the economic interests of the state, which carries the costs for the upbgringing of the children, and the interests of the private persons who upbring their children and don't timely receive the alimonies for it.

Here, on can also focus on something else:

Under Article 9.27 of the Code of Administrative Offenses, administrative penalty in the form of administrative arrest can be applied by internal affairs bodies. This means that the general rule, according to which imprisonment is possible only under a court sentence is not applied to obliged persons. "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law", reads Article 14 of the International Covenant on Civil and Political Rights.

Pitifully enough, the Constitutional Court of Belarus does not see any violations here, which is also strange in relation to its position on the rules of consideration of cases of disorderly conduct: the Code of Administrative Offenses provides for the imposition of penalties under Art. 17.1 by the body of internal affairs, except for imprisonment, and in cases where the person against whom the administrative proceedings has been launched pleads innocent, or if the body of the interior believes that arrest can be used as a result of the consideration of the case, - by court. Here, the Constitutional Court analyzes this practice and fairly recognizes it constitutional, noting that “the constitutional guarantee of the right of everyone to the protection of rights and freedoms by a competent, independent and impartial tribunal (Article 60 of the Constitution) is ensured by the provision of the Law,according to which cases of administrative offenses particularly provided for by Article 10.5 of the CAO (petty theft) and Article 17.1 (disorderly conduct), are to be directed to the court in all cases when persons plead innocent of the administrative offense".

At the same time, the Constitutional Court fails to notice that the provision of Art. 6.2 of the CAO, according to which administrative penalties for committing an administrative offense under Article 9.27 are imposed by internal affairs bodies, deprives persons in respect of whom the administrative proceedicts of this category are conducted, of the right to judicial protection.

Discriminatory is also the provision that those who are sentenced to administrative arrest for committing an administrative offense under Article 9.27 of the CAO are necessarily drawn to public works while serving the arrest. In comparison, those who are sentenced to administrative arrest for other offenses can be drawn to public works only with their own consent.

The state-run newspaper “Sovetskaya Belorussiya” eloquently described the way such works are organized:

"In the Valožyn district, those who are serving arrest under Art. 9.27 are working at the dump in any weather, picking out secondary raw materials from the waste. The reporters noted with satisfaction that the temperature was 31 degrees Celsius above zero and the dump had a specific smell. As explained to them by an officer of the district police department, “only such place would be ideal for the work while serving arrest under Art. 9.27 of the CAO. Look yourself, it is less expedient to give them brooms. Firstly, in such a case each of them needs to be watched by a policemen, as the persons who are used to evade from working, can't be trusted. Secondly, there are certain difficulties with the assessment of the quality of their work – whether one has swept the ground well or bad, whether the conditions are equal for everyone, etc., whereas in the dump everything is the same for everyone, and everyone is always in sight! At the same time, it eliminates the need for a medical certificate, one doesn't need any special education, plus the factor of remoteness from the city:
one cannot flee anywhere."

This means that the standard of protection from degrading treatment does not apply to obliged persons.

There is also another side to this problem: of course, one can exact the material expenses for the upbringing of the children from the obliged persons. But, as stated by many officials, due to the low wages of the obliged persons, especially in the regions, this sum (currently - about 2,000,000 rubles per child), multiplied by the number of children, becomes an unsupportable burden for obligated persons, accumulated in the form of multi-million debts and deprives the debtor (who gets just 30% of the wage in this case) from any stimulus to work. If we return to the situation of the debtors who pay the alimonies, the minimal amount of alimonies is less than 800,000 rubles per child.

While analyzing this issue, the lawyer Pavel Sapelka points at two aspects of the problem – the legal and the ethical:

"If a person, be it a man or a woman, leaves the child or creates a little family hell for it, after which the child is taken away, few of those who consider themselves decent people wouldn't bring shame upon him or her. And this is probably correct. However, shall we forget that all of us (the relatives, neighbors, friends and the society in general) were to some extent standing near, when these people were rolling down, turning into obliged persons. Did we help them? Somebody tried to do it, somebody did not. And this is just the moral aspect, but there is also the legal one: all people are equal before the law, there is one law for all. However, the law seems to be different for the obliged persons, under it – they are second-class citizens, and this is enshrined in the law."

By the way, at present Belarus has 21,305 obliged persons.