by Olga Emelyanovich*

Introduction

For the past decade, the Belarusian agenda has largely focused on the issue of combating trafficking in women and children by actively implementing its international obligations. Specifically, Belarus passed preventive legislative and practical measures as a basis to reduce the number of trafficking victims. Statistically, the number of victims solely from trafficking offenses reduced from 236 victims in 2008 to only twenty victims in 2018.[1] This dramatic shift attracts interest to review and analyze Belarus’ efforts in combating and preventing trafficking in women and children.

Belarus became a participant and signatory of the United Nations Convention Against Transnational Organized Crime[2] and its accompanying Protocols of 2000.[3] To date, Belarus has ratified a number of international agreements to combat trafficking in women and children, including: the United Nations Convention against Transnational Organized Crime; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 2000; the United Nations Convention on the Rights of the Child of 1989;[4] and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of 2000.[5] Regionally, Belarus has ratified the Agreement on Cooperation of States-Members of the Commonwealth of Independent States in Combating Human Trafficking, Organs and Tissues of 2005 (in the framework of the Commonwealth of Independent States, which is a regional, intergovernmental organization),[6] and the Council of Europe Convention on Action against Trafficking in Human Beings of 2005 (in the framework of the Council of Europe, another regional, intergovernmental organization).[7]

This article reviews the national legislation in this field by focusing on the state’s administrative and criminal responses to those in violation of trafficking in women and children, as well as some of the state’s preventive measures, such as licensing of certain activities, awareness-raising campaigns, training of competent personnel, implementing special labor rules, international adoption issues, and ensuring gender equality.

Administrative Responsibility

The Code of Administrative Offenses of the Republic of Belarus (hereinafter “the Administrative Code”)[8] provides the administrative responsibility of legal entities for offenses related to trafficking in women and children. The Administrative Code also introduces the administrative responsibility of legal entities and individual entrepreneurs for violating the order. Specifically, in Article 9.23, the Administrative Code envisages responsibility for breaching the conditions of employment for Belarusian citizens outside the country, as well as foreign citizens and stateless persons permanently residing in the Republic of Belarus. Moreover, the Administrative Code addresses violations regarding advertising under Article 12.15 and further addresses the issue of illegal casting in Article 23.65. Importantly, the Administrative Code also provides an exemption from administrative responsibility of victims of trafficking in human beings under Article 8.7.

Criminal Responsibility

In turn, the Criminal Code of the Republic of Belarus (hereinafter “the Criminal Code”)[9] outlines the general rules and circumstances that exempt victims of trafficking in women and children from criminal responsibility through Article 34, “Necessary defense,” and Article 36, “Extreme necessity.” Additionally, the Criminal Code proscribes criminal responsibility for human trafficking and related offenses through Article 181, “Trafficking in Human Beings” and the “Use of slave labor” under Article 181-1, among others.

Under Article 181, the current version defines “human trafficking” as: “recruiting, transporting, transferring, harboring or receiving a person for the purpose of exploitation, committed by deception, or abuse of trust, or use of violence not dangerous to the life or health of the victim, or with the threat of such violence.”[10] This definition is consistent with the international obligations under the following ratified agreements: Article 3(a) of UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 2000; Article 4 (a) of the Council of Europe Convention on Action against Trafficking in Human Beings of 2005; and Article 1 of the Agreement on Cooperation of States-Members of the Commonwealth of Independent States in Combating Human Trafficking, Organs and Tissues of 2005.

Further, Article 181 of the Criminal Code contains a definition of exploitation, which includes the “unlawful forcing a person to work or provide services (including actions of a sexual nature, surrogate motherhood, the taking of organs and (or) tissues from a person) if a person cannot refuse to perform work for reasons beyond his/her control (services), including slavery or customs similar to slavery.”[11] It is worth noting that the current definition of exploitation complies with the provisions of Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 2000.

In addition, Article 6, Part 3, Paragraph 8-1 of the Criminal Code establishes an extraterritorial jurisdiction for trafficking in women and children, among other crimes, regardless of the place where the crime was committed. This complies with Article 15(2) of the UN Convention against Transnational Organized Crime of 2000, wherein trafficking is considered a transnational organized crime. Article 6, Part 3, Paragraph 8-1 of the Criminal Code is not solely applied to individuals who are part of transnational organized criminal groups; rather, it is broader, since it is also applied to individuals acting personally and accomplices.

Prevention of Trafficking in Women and Children

In 2012, Belarus adopted the Law of the Republic of Belarus on Combating Trafficking in Human Beings.[12]  Under Article 13, this law stipulates a list of measures to prevent trafficking in women and children and related offenses as follows: licensing the activities that may provide conditions for trafficking in women and children and/or their exploitation; setting requirements for model agencies; regulating issues on preventing trafficking in the sphere of information and education; and other measures according to the national legislation.

In accordance with Article 14 of the Law of the Republic of Belarus on Combating Trafficking in Human Beings and the Law of the Republic of Belarus on External Labor Migration through Article 11,[13] there is an authorization procedure (licensing) for the activities of legal entities and individual entrepreneurs associated with Belarusian citizens’ employment abroad and foreigners permanently residing in the territory of Belarus. Model agencies that provide employment services abroad also should have a special permit (license).

Moreover, Article 14 of the Law on External Labor Migration guarantees the protection in the state of employment for stateless migrant workers permanently residing in Belarus. Thus, from the standpoint of observing international standards for the protection of the rights of stateless persons and foreigners, the national legislation accommodates the interests of migrant workers, whether stateless persons or foreign citizens, permanently residing in its jurisdiction (i.e., some of these standards are set forth under Articles 7 and 11 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,[14] despite Belarus not ratifying this specific agreement).

Awareness-Raising Activities

In addition to legislative regulation, it is worth mentioning the practical contribution of non-governmental organizations (NGOs) in this regard.  “Gender Perspectives,” an international public association, provides a national, toll-free hotline on safe traveling and staying abroad.[15] Hotline specialists provide anonymous, confidential, and detailed information on the following topics: employment and relevant procedures abroad, issues of permanent residence abroad, entry and stay rules for foreign citizens in the Republic of Belarus, study abroad issues, and safety traveling rules for vacations.[16]  By cooperating with state bodies, “Gender Perspectives” make a significant contribution towards strengthening national coordination mechanisms in preventing trafficking in women and children. These practical measures correspond and meet the following international obligations proscribed in Article 9, Paragraph 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 2000 and Article 5, Paragraphs 1 and 2 of the Council of Europe Convention on Action against Trafficking in Human Beings of 2005.

Advanced Training of Competent Personnel

According to Article 17, Paragraph 1.3 of the Law on Combating Trafficking in Human Beings, the educational policy in the field of preventing trafficking in women and children is carried out through, inter alia, the advanced training for personnel of state bodies and other related organizations working in the area. This provision corresponds to Article 10, Paragraph 2 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 2000, Article 8, Paragraph 4 of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of 2000, Article 5, Paragraph 2 of the Council of Europe Convention on Action against Trafficking in Human Beings of 2005 by fulfilling the requirements for the employees of competent authorities to receive necessary training in combating and preventing trafficking in women and children.

A significant contribution to the combating and prevention of trafficking in women and children was the opening of the International Training Center for Migration and Combating Trafficking in Human Beings on the basis of the Minister of the Interior (MoI) Academy of the Republic of Belarus in 2007.[17] The MoI Academy of the Republic of Belarus has the status of the main organization of the Commonwealth of Independent States for the training and professional development of personnel in the field of migration and counteracting trafficking in human beings.[18] The International Training Center for Migration and Combating Trafficking in Human Beings is a good base for compiling good practices, exchange of experience, statistics, and data, which practically contributes to the conscious approach of competent specialists to preventing and combating the crime in question.

Labor Legislation

In accordance with International Labor Organization (ILO) standards, the Labor Code of the Republic of Belarus (hereinafter “the Labor Code”)[19] prohibits the use of forced labor under Article 13 and discrimination in the sphere of labor relations under Article 14.

Since domestic workers are at risk of labor exploitation as a result of trafficking in women and children, the legal regulation of the working conditions of domestic workers is of interest. In accordance with the Labor Code, domestic workers are persons who work under the employment contract in the household of individuals, providing them with assistance and other types of services envisaged by the law.

Further, an employment contract with a domestic worker must be registered in the local executive office not later than seven days after signing by the parties. Pursuant to the Labor Code, domestic workers are guaranteed: a) the duration of working hours per week is not more than 40 hours under Articles 112 and 312; b) labor leave not less than 24 calendar days under Articles 155 and 312; and c) state social insurance under Article 314. Thus, the national legislation fixes general guarantees of working conditions for domestic workers.

Multistage Mechanism of International Adoption

With regard to the prevention of trafficking in women and children, the national legislation regulates in detail the procedure of international adoption. Additionally, there is a special procedure for monitoring the living conditions of orphans and children without parental care during the process of obtaining education abroad, as well as during receiving treatment in health organizations of foreign countries. In general, the legislation is harmonized with international standards in the field of international adoption and aimed at minimization of the risks of trafficking in children, which are particularly outlined in the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of 2000 and the Convention on Protection of Children and Co-operation in respect of intercountry adoption.[20]

Gender Issues

Since the unequal status of men and women is one of the causes of trafficking in women and children, it is necessary to ensure gender equality in various spheres of public life. It worth saying that achieving gender equality and empowering all women and girls is the Goal 5 of the 2030 Agenda for Sustainable Development[21]. Gender issues in the prevention and combating trafficking are in the heart of initial purposes of international instruments: Article 2(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 2000, Article 1(a) of the Council of Europe Convention on Action against Trafficking in Human Beings of 2005.  Belarus takes appropriate measures for gender mainstreaming in the related field. Currently, the Fifth National Action Plan for Ensuring Gender Equality for 2017–2020 is in force (hereinafter “the National Action Plan”). The National Action Plan envisages the following directions: 1) development of the institutional mechanism for ensuring gender equality; 2) economic empowerment of women; 3) ensuring gender-oriented health care; 4) ensuring gender equality in family relations; 5) combating domestic violence and trafficking in persons; and 6) gender education and awareness.

The National Action Plan’s focus on preventing and combating trafficking in women is based on gender issues, counteracting domestic violence, rendering assistance to victims of such violence and victims of trafficking in women and children. In this direction, the National Action Plan envisages awareness-raising work with young people on the training of non-violent communication skills, as well as the prevention of domestic violence.

Conclusion

In summary, there is a comprehensive anti-trafficking legislative framework in Belarus. However, to strengthen preventive measures, it is important to identify new trafficking trends to adequately react against new challenges in this field. It is crucial to proceed and update anti-trafficking awareness-raising campaigns, while also taking into consideration the particular interests of vulnerable groups. Finally, it is worth mentioning that the current implementation process is continuing to bring the national legislation in compliance with the international standards regarding combating and preventing trafficking in women and children.

 


* Olga Emelyanovich has more than forty scientific publications in Belarus and abroad, including one personal and one collective monographs dedicated to international cooperation in combating human trafficking and protection of the rights of women and children. Ms. Emelyanovich has teaching experience at the Belarusian State University, Belarus State Economic University, and Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI) in Lund, Sweden. Ms. Emelyanovich has expertise in consultancy and conducting gender research for the RWI and UNESCO projects, tutoring students for the HELP online course on Introduction to the European Convention on Human Rights (Council of Europe), and administrating EU/UNDP projects in Belarus.

[1] Statistics of the Ministry of Internal Affairs of the Republic of Belarus, http://mvd.gov.by/ru/main.aspx?guid=5421

[2] United Nations Convention against Transnational Organized Crime, Nov. 15, 2000, No. 39574 U. N. T. S. 2225, p.209

[3] Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime Nov. 15, 2000, No. 39574 U. N. T. S. 2241, p.507

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Nov. 15, 2000, No. 39574, U. N. T. S. 2237, p. 319.

[4] United Nations Convention on the Rights of the Child, Nov. 20, 1989, No.27531, U. N. T. S. 1577, p. 3

[5] Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, No. 27531U. N. T. S. 2171, p. 227

[6] Agreement On cooperation of States-Members of the Commonwealth of Independent States in Combating Human Trafficking, Organs and Tissues as of 2005 available at http://etalonline.by/

[7] Council of Europe Convention on Action against Trafficking in Human Beings, 2005, https://rm.coe.int/168008371d

[8] Code of Administrative Offenses of the Republic of Belarus as of Apr. 21, 2003 No. 194-Z, www.law.by

[9] Criminal Code of the Republic of Belarus as of July 9, 1999 No.275-Z, http://pravo.by/document/?guid=3871&p0=hk9900275

[10] Id. at Art. 181.

[11] Id.

[12] Law of the Republic of Belarus On Combating Trafficking in Human Beings as of Jan. 7, 2012 No. 350-Z, http://etalonline.by/

[13] Law of the Republic of Belarus On External Labor Migration as of Dec. 30, 2010, No. 225-Z, http://etalonline.by/

[14] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990, https://www.ohchr.org/en/professionalinterest/pages/cmw.aspx

[15] Gender Prospectives, Mission of Public Assoсiation “Gender Perspectives,” https://www.genderperspectives.by/en/

[16] Gender Prospectives, Infoline on safe travel and stay abroad, https://www.genderperspectives.by/infoliniya-po-bezopasnomu-vyezdu-i-prebyvaniyu-za-granitsej

[17] The History of the International Training Center for Training, Advanced Training and Retraining in the Field of Migration and Counteracting Trafficking in Human Beings, https://itc.amia.by/en/history

[18] Decision on giving the educational institution “Academy of the Ministry of Internal Affairs of the Republic of Belarus” the status of the basic organization of states-participants of the Commonwealth of Independent States on training, advanced training, retraining of personnel in the field of migration and combating human trafficking of May 23, 2008, http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=2437

[19] Labor Code of the Republic of Belarus as of July 26, 1999, No. 296-Z, http://etalonline.by/PrintText.aspx?regnum=HK9900296

[20] Belarus is a party to the latter. Convention on Protection of Children and Co-operation in respect of intercountry adoption, 1993, https://www.hcch.net/en/instruments/conventions/full-text/?cid=69

[21] Transforming our world: the 2030 Agenda for Sustainable Development, Resolution of the UN General Assembly A/RES/70/1, 2015, http://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_70_1_E.pdf