Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Abolition of Forced Labour Convention, 1957 (No. 105) - Guatemala (Ratification: 1959)

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing political views, for breaches of labour discipline and for participation in strikes. For many years, the Committee has been referring to certain provisions of the Penal Code that may affect the application of the Convention. Under these provisions, prison sentences involving compulsory labour (under section 47 of the Penal Code) can be imposed, in breach of the Convention, as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike. The provisions in question are the following: section 396, under which “any person who seeks to organize or operate, or who participates in, associations which act in collaboration with, or in obedience to, international bodies that promote the communist ideology or advocate any other totalitarian system, or associations whose purposes offend against the law, shall be punished with imprisonment of from two to six years”; section 419, which stipulates that “any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years”; section 390(2), under which “anyone committing an act intended to paralyse or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years”; and, finally, section 430, which stipulates that “public servants, public employees and other employees or members of the staff of public service enterprises who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalty shall be doubled where such stoppage harms the public interest, and in the case of leaders, promoters or organizers of a collective stoppage”.

The Committee notes with interest that the Act against Organized Crime (Decree No. 21-2006 of 10 August 2006) repealed section 396 of the abovementioned Penal Code. It notes moreover that, according to the Government, a tripartite commission was appointed in 2008 to examine the legislative reforms to be made in follow-up to the comments of the Committee, which included the amendment of sections 390(2) and 430 of the Penal Code. The Government points out that these proposals were drafted with ILO technical assistance and that they are backed by the Ministry of Labour and Social Affairs. In this respect, the Committee notes that the high-level mission that went to Guatemala in 2011 at the request of the Committee on the Application of Standards of the International Labour Conference, in the context of the examination of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), stressed the lack of progress made with respect to the legislative reforms recommended by the Committee of Experts – the provisions of sections 390(2) and 430 were also the subject of comments under Convention No. 87. The mission pointed out that no bill had been submitted to Congress by the tripartite commission of international affairs.

The Committee trusts that the Government will be able to indicate in its next report that the provisions of sections 419, 390(2) and 430 of the Penal Code have been modified or repealed, taking into account the comments it has been making for many years, to ensure that nobody taking part in a strike or breaching labour discipline may be penalized by a prison sentence involving compulsory prison labour. Meanwhile, the Committee requests the Government to send information on the application of these provisions in practice, including copies of any rulings handed down under these provisions. The Committee also refers to the comments it makes under Convention No. 87.