Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the Government’s report as well as the observations made by the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) on the application of the Convention, which were received on 1 September 2012 and sent to the Government on 24 September 2012.

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing opposition to the established economic and social order, for breaches of labour discipline and for participation in strikes. In its previous comments, the Committee requested the Government to take the appropriate measures to amend sections 419, 390(2) and 430 of the Penal Code, given that, 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 means of labour discipline or for participation in a strike. Under section 419 of the Penal Code, “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”; according to section 390(2), “anyone committing an act intended to paralyze 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 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 penalties 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 noted in particular that, although proposals to amend sections 390(2) and 430 of the Penal Code had been drafted with ILO technical assistance by the Tripartite Commission appointed in 2008 to examine the legislative reforms to be made in follow-up to the Committee’s comments, no legislative reforms had been made and no bill had been submitted to Congress.

The Committee notes that, according to information submitted by the Government to supplement its report on 5 November 2012, the Government indicates that there is no legislative initiative before Congress to amend the provisions of the Penal Code referred to by the Committee in so far as these provisions do not usually penalize strike action or breaches of labour discipline but rather events that undermine social order – and, in view of their repercussions, also sometimes social peace. The Committee notes that the Government submitted, as an example, a legal ruling based on section 419 of the Penal Code for a case of embezzlement of public funds by a local authority.

The Committee also notes that, in its observations, the MSICG underlines the State’s lack of political will to follow through with the necessary legislative reforms. According to the MSICG, the Government has been making formal announcements for many years about the agreements reached in various committees, the drafting of bills, the strengthening of the Tripartite Commission or the recourse to ILO technical assistance, without any of these announcements actually resulting in the adoption of the necessary reforms. The MSICG also refers to other provisions in the Penal Code which give a very wide interpretation of the elements constituting an offence, so that actions considered normal in the context of a social protest, a strike or any other demonstration by civil society could be covered by this definition (sections 256 and 391 of the Penal Code concerning unlawful appropriation of property (usurpación) and the definition of terrorism). The trade union believes that any legal provisions that criminalize social protests on the basis of offences that have been very broadly defined, excludes an environment conducive to the exercise of freedom of association; consequently, given the considerable restrictions imposed on the right to strike, exercising freedom of association runs the risk of trade union activities being penalized.

The Committee recalls that it has been making comments on the need to amend sections 419, 390(2) and 430 of the Penal Code for more than 30 years and that the Government has, on several occasions, given the assurance that the penal legislation will be brought into conformity with the Convention, the last time being in the context of the work of the Tripartite Commission appointed in 2008 to examine the legislative reforms to be made in follow-up to the comments of the Committee. It regrets to note that the Government no longer refers to its intention to review the abovementioned provisions and recalls that, in the context of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it is also calling for the amendment of sections 390(2) and 430 of the Penal Code. Consequently, the Committee urges the Government to adopt the necessary measures with a view to amending or repealing the provisions in sections 419, 390(2) and 430 of the Penal Code, to ensure that nobody who peacefully participated in a strike or breached labour discipline may be penalized by a prison sentence involving compulsory prison labour. The Committee also requests the Government to send information on the observations made by the MSICG on the criminalization of social protests and trade union activities.