Legal Analysis of Decree of President of Republic of Belarus #18 of 24 November 2006 On Additional Measures of state defense of children in socially troubled families
On 24 November the president of the Republic of Belarus issued Decree #18 On Additional Measures of state defense of children in socially troubled families. It comes into force on 1 January 2007 with the exception of temporary parts of paragraphs 15, 16 and 22-29 which, according to article 101 part 3 of the Constitution are to be presented to the National Assembly for consideration). Provisions of part 15 and part 16 paragraph 14 will come into force after enforcement of the Law on introduction of amendments to the appropriate laws concerning questions ensuing from the Decree, and paragraphs 22-29 are enforced on the day of official publication of the Decree.
Human Rights Center Viasna expresses its concern with the fact that some of provisions of Decree #18 contradict to the Constitution of the Republic of Belarus, legal norms and international agreements in the field of human rights, which can bring to human rights violations in the country. Let us consider the most problematic provisions of the Decree.
In conformity with paragraph 1 of the Decree, children are liable to state defense and upbringing by the state in the case when it is found that their parents (father or mother) lead an immoral way of life which negatively influences the children, are chronic dipsomaniacs or drug addicts or fail to implement their duties on education and maintenance of their children in a way that puts the latter ones in a socially dangerous situation.
But for all that, the Decree offers no definition of immoral behavior and socially dangerous situation. A partial answer can be found in article #67 of Matrimonial and Family Code of the Republic of Belarus, in which socially dangerous situation is defined in the following way: as a result of neglect a child is in a situation that presents danger to its health or life or doesn’t meet the requirements for his education and maintenance, or if a child commits crimes.
One of the reasons for our concern is that provisions of this Decree can be used for politically motivated harassment. In Belarus under-aged persons often receive administrative punishment for public and political activity, are put on delinquent list by Commissions on cases of under-aged persons and at schools and their parents are administrative punished under article 162 of the Code of Administrative Violations (malignant non-fulfillment of parental duties on education and upbringing). For instance, Ivan Shyla, a youth activist from Salihorsk, has been many times summonsed to a Commission on cases of under-aged persons and threatened that as a result of his ‘violations’ his parents could be deprived of parental right and he would be transferred to a colony for under-aged delinquents.
The Belarusian law machinery often considers participation in public and political activity as petty hooliganism (article 156 of the Administrative Code), which in certain circumstances can be qualified as ‘immoral way of life’. For instance, an activist from Mahiliou Krystsina Shatsikava received many administrative punishments for her activity (in some cases under article 156 of the Administrative Code). Representatives of a school administration and a Commission on cases of under-aged persons paid several visits to her home in order to study the life conditions of her two under-aged children. Despite the fact that the children regularly visit the school, aren’t on the commission’s delinquent list and aren’t neglected K.Shatsikava has serious reasons to fear that they can be taken away from her on the basis of the Decree for her ‘immoral way of life’.
The most alarming is that the Decree provides the possibility of alienation of children without trial. According to paragraph 2 of the Decree a Commission on cases of under-aged persons of a local executive committee (further referred to as Commission on cases of under-aged persons) in the place of a child’s residence can within three-days’ term decide on confessing a child as liable to state defense, alienation from the parents (mother or father), conferment of the status of child without parental care and its transfer to state maintenance. While deciding on alienation of a child the commission on cases of under-aged persons implements functions of a tutelary organ.
The appropriate prosecutor is informed about the decision about alienation of the child within three-day term. The prosecutor, in his turn, has three days for familiarization with the documents and annulment of the decision (in the case he finds any law violations). The decision about alienation of a child is obligatory for execution by state organs, other organizations, their officials and citizens. According to paragraph 2 of the Decree, alienation of a child is implemented by the Commission on cases of under-aged persons the day after the issue of the decision. The Commission consists of representatives of the education department of the local executive organ, the police, if necessary – representatives of the health department of the local executive organ and representatives of other organizations.
After alienation the child is transferred to state maintenance in conformity with the legally established order.
According to part 4 of the Decree, the Commission on cases of under-aged persons must:
- within 6-months’ term decide for returning of the child to parents in the case of disappearance of the reasons for which the child has been alienated, and inform about it the organizations in which the parents work and/or the work and social defense department of the local executive organ;
- or apply to court for deprival the child’s parents (father or mother) of parental rights.
Thus, the Decree provides alienation of children by the Commission on cases of under-aged persons without trial. These provisions of the Decree contradict to article 32 of the Constitution of the Republic of Belarus, according to which children can be separated from their families against the will of their parents or other persons who substitute them only by court verdict in the case when parents or the persons that stand for them don’t execute their parental duties.
These provisions also contradict to a number of international norms in the field of human rights. For instance, in conformity of article 9 of the Convention on the Rights of the Child (adopted by the UN General Assembly on 20 November 1989) the member countries guarantee that children be not separated from their parents athwart their will with the exception of the cases when competent organs on court decision in conformity with legislation define that such separation is necessary for the good of the child. Such definition can be necessary in such cases as neglect or violent treatment of children by the parents or in the case the parents live separately and it is necessary to decide on the place of the child’s residence.
The Decree provision about forced job placement to the parents who must pay for the state maintenance of their children deserves criticism as well.
According to paragraph 9, in the case the scope of wage of an obliged person doesn’t allow complete payment for the state maintenance of children during 6 months, in conformity with paragraphs 13 and 14 of the Decree the person is to be placed to a new job.
According to paragraph 13 the question of job placement must be decided by court in remark about the court order for exaction of the expenses for maintenance of the children, verdict for deprival of parental rights or alienation of children without deprival of parental rights.
Paragraph 14 of the Decree puts the responsibility for job placement of such persons on the state employment services which must within three-day term define one or several organizations for placement of the obliged person. The wage received at the chosen places of work must allow complete implementation of monthly obligations on compensation of the expenses for state maintenance of the children and leaving at least 30% of the wage to the obliged persons.
The attendance of state employment services and working places by unemployed obliged persons who are able of working is to be provided by the police. Employers can’t refuse to employ the obliged persons who have been directed by the social employment services and the obliged persons can’t refuse to work.
The control of daily presence of the obliged persons at work is to be exercised by the employers together with the police and state employment services.
Non-presence of the obliged person at work for ten and more days a month during three, concealment or underestimation of the wage and other income or other action or inaction that results in non-implementation or incomplete implementation of monthly obligations on compensation of the state expenses for maintenance of the children is a reason for drawing the obliged persons to criminal responsibility under article 174 of the Criminal Code (evasion of parents from maintenance of children or from compensation of the expenses for the state maintenance of the children) which provides up to two years of corrective labor or up to three years of personal restraint as punishment.
The same actions by a person who has been already punished for evasion from maintenance of children or compensation of the expenses for their maintenance by the state is punished by 1-2 years of corrective labor or 1-4 years of personal restraint.
According to Decree #18 the persons who are punished for violating this article can’t be released early.
Human Rights Center Viasna believes that Decree #18 introduces the institute of forced job placement. In this case provisions of the Decree contradict to the Constitution and the international norms in the field of human rights. For instance, article 41 of the Constitution of the Republic of Belarus guarantees to citizens the right to work as the most dignified means of self-assertion of a human – the right to chose the profession, the sphere of activities and work in accordance with one’s calling, abilities, education, professional skills and public needs. Healthy and safe conditions of work are guaranteed as well. Forced work is prohibited with the exception of work or service that is determined by a court ruling or the martial law. According to the Constitution work is a right, not a duty of a citizen. A person can be obliged to work only by court verdict as a punishment for a crime. Nevertheless, by provisions of Decree #18 forced labor is introduced for non-execution of civil duties which is not criminally punishable.
The norms of Decree #18 related to forced placement of citizens to job contradict the Convention (#29) concerning Forced Labor, adopted at 14 by the General conference of ILO on 28 June 1930. According to article 1 paragraph 1 of the Convention any member-country of ILO that ratifies the Convention undertakes the use of forced and compulsory labor in all its manifestations in the shortest terms possible. According to article 2 of the Convention the term ‘forced or compulsory work’ denotes any kind of work or service which the person didn’t agree to do on his/her free will and execution of which is demanded from a person under the threat of punishment. This article includes some admissible exceptions. For instance, the term ‘forced work’ doesn’t include: work that is conducted in conformity with the law on army service; any work that is a part of usual civil duties of citizens; any work which is demanded from a person on the basis of a court verdict provided such work is implemented under supervision and control of state organs; word during emergency situations (earthquake, flood, fire, etc.).
Besides, it is really doubtful that this part of the Decree can be executed in practice. According to the Decree provisions at least 30% of the wage must be left to the obliged persons. Taking into consideration that maintenance of one child in special state institutions costs about 150-200 US dollars, the obliged persons must receive some a sum equal to 210-260 US dollars. This sum considerably increases if the person has more than one child. It is very difficult to find such jobs for the mentioned persons in conditions of unemployment, especially considering that they can be chronic dipsomaniacs or drug addicts and can to a considerable extent lose their working skills. Besides, the law system of the country can be considerably overloaded. Police workers, especially local inspectors, will have to dedicate much tome to control of daily presence of the obliged persons at work. As a result of appliance of the Decree provisions the number of persons who are sentenced to personal restraint can increase as well, which can lead to overpopulation of open penitentiary institutions.
The provisions of Decree #18 that provide eviction of persons from the occupied accommodations limit and violate the property rights and contradict to provisions of the Civil Code and the Housing Code of the Republic of Belarus.
For instance, according to paragraph 15 of the Decree on suits of local executive organs or organizations empowered by them the obliged persons can be evicted by court from private or state accommodations which they occupy with provision to them other accommodations that have smaller in space or worse living conditions, including premises outside the borders of the settlement for the term, specified by the court decision. It means that persons can be evicted from flats and houses they own. After this the free spaces are liable for renting to other persons even without a letter of attorney signed by the owner.
The Housing Code provides eviction of citizens from state accommodations, rented accommodations or private accommodations which are not owned by them. According to paragraph 17 of the Ruling of the Plenum of the Supreme Court of the Republic of Belarus On some questions of appliance of housing legislation by courts of 30 April 2000, renters, members of their families and other persons who live cohabitate together with them in houses of private or state fund, can be evicted due to the reasons provided by article 39 of the Housing Code (impossibility of communal dwelling). For the same reasons could be evicted members of families of the owners of the accommodations (including privatized accommodations), in the case they aren’t co-owners. Thus, the acting housing laws don’t provide eviction of owners or co-owners from accommodations. Besides, athwart the Civil Code (articles 210, 219, 236 and 271 of the Civil Code) Decree #18 lets duty officials dispose of the owners’ property athwart their will. Only owner has the right to independently decide on selling or renting the owned accommodation.
Another matter of concern is that the practical implementation of the Decree can give ground to different abuses from the side of the appropriate state officials who are given the right to evict obliged persons from their accommodations.
We should also remind that problems associated with children acquire a politicized nature in Belarus. In some cases A.Lukashenka personally interfered with adoption of children. In fact, he prohibited adoption of Belarusian orphans by foreign citizens. During discussion of issues related to social orphanage in the country some deputies of the Chamber of Representatives of the National Assembly claimed adoption of laws on forced sterilization of dipsomaniacs, drug addicts and other ‘anti-social’ elements and establishment of working camps for the parents who evade from maintaining and education of their children. These processes can result in human rights violations and therefore cause grave concern of human rights activists.
