Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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 opposition to the established political, economic and social system, for breaches of labour discipline or for participating in strikes. The Committee recalls that for many years it has been requesting the Government to amend sections 419, 390(2) and 430 of the Penal Code as under these provisions prison sentences involving compulsory labour (in accordance with section 47 of the Penal Code) can be imposed to punish the expression of certain political views, as a means of labour discipline or for participation in a strike. Under the terms of 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”; under the terms of section 390(2), “any person 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 provides that “public servants, public employees and other employees or members of the staff of 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 further recalls that sections 390(2) and 430 of the Penal Code have also been the subject of its comments in the context of its supervision of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and that, further to the complaint made under article 26 of the Constitution for non-observance by Guatemala of Convention No. 87, a road map was adopted by the Government in 2013 in consultation with the social partners. In this framework, the Government undertook to submit to the prior consultation with the social partners the Bills designed to bring the national legislation into conformity with Convention No. 87 (point 5 of the road map).

The Committee notes the Government’s indication, in its report, that Bill 5199, that would amend sections 390(2) and 430 of the Penal Code, was presented to the National Congress on 31 January 2017. The Government adds that after more than 70 hours of work, trade union organizations and employers reached a bipartite agreement through social dialogue in June 2017 concerning the amendment of sections 390(2) and 430 of the Penal Code, specifying that those provisions “do not apply in cases of legal strike executed in accordance with current legislation, except for those who committed acts of violence against persons or against property or other serious infractions provided for” in the Penal Code. The Government states that in March 2018, the bipartite agreement was communicated to the National Congress asking for its approbation. Noting the Government’s indication that Bill 5199 entered into the second debate on 8 May 2018, the Committee observes that the draft legislation has not yet been adopted.

The Committee further notes that in November 2017 a tripartite agreement was reached, in collaboration with the ILO, which calls for the formation of a National Tripartite Commission on Labour Relations and Freedom of Association, which would monitor and facilitate the implementation of the 2013 road map. It notes that, on 6 February 2018, the National Tripartite Committee was established by Ministerial Decision No. 45-2018 and is composed of three subcommittees, namely on the implementation of the ILO road map, mediation and dispute settlement, and legislation and labour policy which is responsible for submitting tripartite agreed opinions on labour law initiatives to the National Congress. In that respect, the Committee notes that the Government indicates, that on 11 April 2018, a specific item was included on the agenda of the National Tripartite Committee to “issue opinions with regard to the recommendations made by the Committee of Experts on the Application of Conventions and Recommendations” concerning, inter alia, Convention No. 105. The Government states that the above-mentioned Bill 5199 does not provide for the amendments of sections 47 and 419 of the Penal Code, as such amendments would be addressed through social dialogue and tripartism in the subcommittee on labour law and policy of the National Tripartite Commission. The Committee refers to its previous comments where it noted that, according to the Government, work by persons convicted to a sentence of imprisonment is part of their rehabilitation and cannot be considered of a compulsory nature, despite section 47 of the Penal Code, which provides that “work by detainees shall be compulsory and shall be paid”. The Committee requests the Government to provide updated information on any progress made in the adoption of Bill 5199, and more particularly concerning the amendment of sections 390(2) and 430 of the Penal Code, as well as a copy of the new legislation once adopted. It further requests the Government to provide information on any progress made in the amendment of sections 47 and 419 of the Penal Code, in particular within the framework of the National Tripartite Committee on Labour Affairs and Freedom of Association.

Referring to its previous comments where it noted that the Government did not reply to the allegations made in 2012 and reiterated in 2015 by the Guatemalan Union, Indigenous and Peasant Movement (MSICG) concerning the criminalization of social protection and trade union action, the Committee notes the Government’s statement that it is unable to reply as it did not receive a copy of these observations. The Committee recalls that the MSICG referred to certain provisions of the Penal Code (and particularly section 256 of the Penal Code on the unlawful appropriation of property (usurpación)), which define the constituent elements of the offences that they criminalize in broad terms, such that conduct considered to be normal in the context of social protest, a strike or any other demonstration by society could be covered by these provisions and constitute a penal office. While noting the adoption in April 2018 of Order No. 5 2018 on the investigation of offences against human rights defenders by the Public Prosecution Service, the Committee observes that several United Nations Treaty Bodies, together with the UN Special Rapporteur on the rights of indigenous peoples and the Office of the High Commissioner in Guatemala, recently expressed concern about: (i) the increasing frequency of the abusive use of criminal proceedings directed against human rights defenders, journalists and indigenous leaders, on criminal charges ranging from threats to public safety, incitement to crime, instigation, unlawful association to sedition or aggravated trespass, which is considered as a flagrant offence which automatically involves restrictions on the right to a defence; as well as (ii) arbitrary criminal prosecution of indigenous community radio stations. They also expressed concern about draft legislation relating to terrorist acts, public order and non-governmental organizations that would restrict freedom of expression, assembly and association by defining criminal conduct in vague terms, among other reasons (CERD/C/GTM/CO/16-17, 27 May 2019, paragraphs 25–27; A/HRC/40/3/Add.1, 28 January 2019, paragraphs 41 and 44–46; CAT/C/GTM/CO/7, 26 December 2018, paragraph 38; CCPR/C/GTM/CO/4, 7 May 2018, paragraphs 36 and 38; A/HRC/39/17/Add.3, 10 August 2018, paragraphs 44, 51, 53, 59; and CEDAW/C/GTM/CO/8-9, 22 November 2017, paragraph 28). The Committee further notes that, in the framework of the Universal Periodic Review (UPR), the UN Human Rights Council also recommended that the Government ensure that human rights defenders can carry out their legitimate activities without undue impediment, obstruction or legal harassment (A/HRC/37/9, 2 January 2018, paragraph 111). The Committee urges the Government to take the necessary measures to ensure that no person who participates peacefully in a strike or opposes the established political, economic or social system may be subject to a prison sentence involving compulsory prison labour, including human rights defenders, journalists and indigenous leaders. It requests the Government to provide information on any measures taken in that regard, as well as concerning the observations previously made by the MSICG.