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Forced Labour as Seen by Ukrainian Legislation and Case Law of the European Court of Human Rights

15.08.2014

Oleksandr Dementiev, lawyer at Ilyashev & Partners
Source: The Lawyer&Law

Prohibition of forced labour has been established at the constitutional level. In accordance with Section 43 of the Constitution, the use of forced labour is prohibited. The Constitution and other regulations of Ukraine contain no definition of forced labour. The above Section of the Constitution lists only three exceptions under which the work cannot be considered authoritative. Thus, according to the Main Law, forced labour does not include: (i) military or alternative (non-military) service, (ii) works or services performed by a person under sentence or other court order, or (iii) in accordance with the laws of war and state of emergency.

It is not surprising that Ukrainian lawmakers did not take pains in making a definition of forced or compulsory labour. They just used definitions contained in the International Labour Organisation (ILO) Convention No. 29 concerning Forced or Compulsory Labour (1930) where compulsory labour is defined as 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, and ILO Abolition of Forced Labour Convention No. 105 (1957) which reads that Each Member of the International Labour Organisation which ratifies this Convention 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.”

However, in Ukraine, which is a party to these international treaties, the principle of the prohibition of forced labour is implemented in many regulatory requirements.

So, for example, Section 31 of Ukraine’s Code of Labour Laws has it that no employer or any agency authorized by it shall be entitled to require an employee to perform work not covered by his employment contract. Pursuant to Section 32(1) of the Code, no employee may be transferred to any other position within the same company, institution or organization, or to any other company, institution or organization, or moved to any other location, together with his company or not, without his express consent.

Plenum Resolution No. 9 of the Supreme Court of Ukraine On the Application of the Constitution in Matters Relating to the Administration of Justice dated November 1, 1996 contains clarifications on the provisions of Article 43 of the Constitution prohibiting forced labour. The Supreme Court suggested that Articles 32, 33 and 34 of the Labour code, internal regulations of agencies, disciplinary rules, etc. providing for the temporary transfer of an employee without his or her consent to another job as disciplinary action, by reason of operational necessity or downtime, as well as the possibility of making him or her to perform work not covered by employment contract, should be recognized as contradicting the Constitution.

Notably, neither the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) ratified by Ukraine in 1997 nor the case law of the European Court of Human Rights (the Court), which is the source of law in Ukraine, contain any fundamentally different interpretations of the concept of forced labour as they both use a universal definition from 1930 ILO Convention.

To wit, in the case of Van der Mussele v. Belgium (Application no. 8919/80, judgment of 23 November 1983), a young Belgian attorney complained that the obligation to act in court for a defendant who has no resources to pay his legal fees, without further compensation or reimbursement of appropriate expenses is a violation of Article 4 § 2 (art. 4-2) of the Convention. In its judgment, the European court has displayed an approach unique to international judicial practice to determine whether there was or was not a breach of the prohibition of forced labour.

First of all, the Court noted that the services to be rendered did not fall outside the ambit of the normal activities of an “avocat”. In addition, the services in question contributed to the applicant’s professional training in the same manner as did the cases in which he had to act on the instructions of paying clients of his own or of his pupil-master. They gave him the opportunity to enlarge his experience and to increase his reputation. In this respect, a certain degree of personal benefit went hand in hand with the general interest which was foremost. The Court further noted that the obligation to which Mr. Van der Mussele objected constituted a means of securing for defendant the benefit of Article 6 § 3 (c) (art. 6-3-c) of the Convention. By the same token, it was an obligation of a similar order to the “normal civic obligations” referred to in Article 4 § 3 (d) (art. 4-3-d).

Therefore, I can go on to conclude that in the case law of the European Court, a forced work not directly covered by the employment contract will not be deemed onerous and thus will not be a breach of Article 4 of the Convention where it is part of the profession of the person, and can theoretically contribute to the professional development, as well as where this “non-obligatory work” contributes to the enjoyment of any other right provided for by the Convention.

In general, it should be noted that applications of Europeans under Article 4 of the Convention are perhaps the most rare in the practice of the European Court. Indeed, for over sixty years of existence, the Court made only 155 judgments upon such applications, with the Russian Federation and the Republic of Cyprus as the most flagrant offenders in this area (22 judgments under Article 4 of the Convention against each). Of 46 cases against Ukraine heard by the European Court, our government has lost not one.

 
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