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

Worst Forms of Child Labour Convention, 1999 (No. 182) - Guatemala (Ratification: 2001)

Article 3. Worst forms of child labour. Clause (b). Use, procuring or offering of a child for the production of pornography or for pornographic performances. In its previous comments, the Committee noted that the national legislation does not prohibit the use, procuring or offering of a child under 18 years of age for the production of pornography or for pornographic performances. It noted that the Congress of the Republic was examining a Bill to reform the Penal Code.

The Committee notes with satisfaction that under the terms of section 40 of Decree No. 9-2009 issuing the Act against sexual violence, exploitation and trafficking of persons, which contains amendments to section 194 of the Penal Code, any person who produces, manufactures or prepares pornography using persons under 18 years of age shall be liable to a sentence of six to ten years of imprisonment.

Articles 3(a) and 7(1). Sale and trafficking of children for commercial sexual exploitation and the penalties applied. The Committee noted previously that the Committee on the Rights of the Child (CRC), in its concluding observations on the Government’s initial report on the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of July 2007 (CRC/C/OPSC/GTM/CO/1, paragraphs 8, 12 and 22), expressed concern at the increasing incidence of the commercial sexual exploitation of children and the high number of victims in the country, estimated at 15,000. The CRC also noted reports that child victims are penalized and institutionalized for long periods until decisions are made on their case. The Committee noted that the Trafficking of Persons Unit had conducted a number of investigations relating to commercial sexual exploitation. It also noted that an initiative for the adoption of a law against violence, exploitation and trafficking for the purposes of sexual exploitation was submitted to the Congress of the Republic in August 2008. It further noted that one person was reported to have been convicted for the trafficking of children and that 16 cases were under investigation.

The Committee takes due note of the adoption of Decree No. 9-2009 issuing the Act against sexual violence, exploitation and trafficking of persons. It notes that section 47 of Decree No. 9-2009 amends section 202 of the Penal Code and introduces section 202ter. Under this new provision, the crime of the trafficking of persons is punishable by a sentence of eight to 18 years of imprisonment. Furthermore, under the terms of section 202quater of the Penal Code, as amended by section 48 of Decree No. 9-2009, any person who offers or promises an economic benefit arising out of activities related to the trafficking of persons is liable to a sentence of six to eight years of imprisonment. The sentence is increased by two-thirds if the victim is under 14 years of age and is doubled if the victim is under 10 years of age. The Committee notes the statistics provided in the Government’s report relating to the application in practice of these new provisions. It observes that 17 complaints were lodged in 2009 under section 202ter, of which 16 related to girls, and one complaint under section 202quater. However, according to the information provided in the Government’s report, no sanctions appear to have been applied for the crime of trafficking of children between 2008 and 2009. In this respect, the Committee observes that the CRC, in its concluding observations of 25 October 2010 on the third and fourth periodic reports of Guatemala (CRC/C/GTM/CO/3-4, paragraph 94), expressed concern that there have been no convictions for sexual exploitation since the adoption of the Act against sexual violence, exploitation and trafficking of persons, and at the tolerance of the competent authorities in relation to trafficking. The CRC also expressed concern once again at the increasing incidence of the sale and sexual exploitation of children (CRC/C/GTM/CO/3-4, paragraph 30). The Committee also notes that, according to a report on the trafficking of persons of 14 June 2010, available on the website of the United Nations High Commissioner for Refugees, the presumed complicity and corruption of officials in activities related to the trafficking of persons is an obstacle to the application of the relevant provisions of the national legislation.

While observing that there are various provisions prohibiting the commercial sexual exploitation and trafficking of children, the Committee expresses concern at the information bearing witness to the persistence of the problem of the trafficking of children for their commercial sexual exploitation and at the allegations of the complicity between officials entrusted with the enforcement of the law and persons engaging in the trafficking of persons. The Committee therefore urges the Government to take the necessary measures to ensure that thorough investigations and robust prosecutions are conducted against persons who engage in the sale and trafficking of children under 18 years of age for commercial sexual exploitation and of officials who are complicit in such acts, and that sufficiently effective and dissuasive sanctions are applied in practice. It requests the Government to provide information on the number of investigations, prosecutions and convictions under sections 202ter and 202quater of the Penal Code, as amended by Decree No. 9-2009 issuing the Act against sexual violence, exploitation and trafficking in persons.

Article 6. Programmes of action. National Plan of Action to Combat the Commercial Sexual Exploitation of Children. In its previous comments, the Committee noted that the National Plan of Action to Combat the Commercial Sexual Exploitation of Children was being revised. It requested the Government to provide information on the programmes of action developed as part of the implementation of the National Plan.

The Committee notes that the Government has not provided information on this matter. However, the Committee observes that, in the Government’s third and fourth periodic reports submitted to the CRC on 23 November 2009 (CRC/C/GTM/3-4, paragraphs 255–256), the Government indicated that the National Plan of Action to Combat the Commercial Sexual Exploitation of Children had been adopted as official policy by the Secretariat of Social Welfare, but that the Secretariat had not been able to implement the Plan and, in view of the inadequacy of the budget allocated, it was only able to implement programmes for the children of female sex workers in the area around the airport. The Committee therefore urges the Government to adopt immediate and effective measures to ensure the implementation of the National Plan of Action to Combat the Commercial Sexual Exploitation of Children. It requests the Government to provide information on this subject in its next report.

Article 7(2). Effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour, removing them from these forms of labour and ensuring their rehabilitation and social integration. 1. Commercial sexual exploitation and trafficking for that purpose. In its previous comments, the Committee noted that Guatemala is participating in an ILO–IPEC regional project “Stop the Exploitation: Contribution to the Prevention and Elimination of Commercial Sexual Exploitation of Children in Central America, Panama and the Dominican Republic”. The Committee also took due note of the adoption in 2007 of a public policy to combat the trafficking of persons and ensure the full protection of victims and a National Plan of Strategic Action (2007–17), with the objectives of the immediate and full protection of victims, namely medical and psychological care and reintegration into the family and society.

The Committee notes that the ILO–IPEC regional project on the prevention and elimination of the commercial sexual exploitation of children ended in April 2009. It observes that, according to the ILO–IPEC report of the project of July 2009, for the total duration of the project (November 2005–April 2009), 375 children benefited from services or were reintegrated into the formal or informal school system in Guatemala. Of this number, 187 children, a majority of whom were girls, were removed from commercial sexual exploitation or trafficking, and 188 children were prevented from being engaged in these worst forms of child labour.

However, the Committee notes that the Government’s report does not contain information on the measures adopted in the context of the implementation of the public policy to combat trafficking in persons and ensure the full protection of victims and on the National Plan of Strategic Action (2007–17). It also observes that the CRC, in its concluding observations of 25 October 2010 on the third and fourth periodic reports of Guatemala (CRC/C/GTM/CO/3-4, paragraph 94) noted with concern that the competent authorities did not provide specialized or appropriate care for victims of trafficking and sexual exploitation and that the Government did not provide appropriate support to organizations working in this field. Noting that the ILO–IPEC regional project on the prevention and elimination of the commercial sexual exploitation of children has come to an end, the Committee urges the Government to adopt time-bound measures to: (a) prevent children from becoming victims of commercial sexual exploitation or trafficking for that purpose; and (b) provide the necessary and appropriate direct assistance to remove the child victims from these worst forms of child labour. It also once again, requests the Government to provide information on the measures adopted or envisaged as part of the implementation of the public policy to combat trafficking of persons and provide full protection for victims, and on the National Plan of Strategic Action (2007–17), with a view to ensuring the rehabilitation and social integration of the child victims removed from these worst forms of child labour.

2. Tourist activities. The Committee previously noted that the Guatemalan Institute of Tourism (INGUAT) had undertaken to promote at the national level a process of training and awareness raising for the tourist industry for the years 2007–10 with a view to preventing the formation of trafficking networks, particularly for commercial sexual exploitation, and identifying their activities. It also notes the enactment of the Global Code of Ethics for Tourism in the country, as well the envisaged formulation in 2008 of the Plan of Action for the Implementation of the Global Code of Ethics for Tourism with a view to the protection of children against commercial sexual exploitation.

The Committee takes due note of the awareness-raising activities carried out by INGUAT in 2009 and 2010 for children and young persons, actors in the tourist industry, the police and the Tourism Security Unit (USETUR) on the subject of the commercial sexual exploitation of children and young persons.

Article 8. International cooperation. Trafficking of children for commercial sexual exploitation. In its previous comments, the Committee noted that, in the context of the implementation of the public policy and National Plan of Action for Childhood (2004–15), the Government planned to adopt measures in collaboration with neighbouring countries with a view to bringing an end to the sale and trafficking of girls, boys and young persons for the purposes of sexual exploitation. It noted that a National Protocol for the repatriation of boys, girls and young persons who are victims of trafficking was adopted in 2007, as well as a document on regional initiatives for the special protection of returning boys, girls and young persons who have been victims of trafficking, the purpose of which is to promote cooperation between member countries of the Regional Conference on Migration. However, it observed that the CRC, in its concluding observations of July 2007 (CRC/C/OPSC/GTM/CO/1, paragraph 29), while recognizing the conclusion of memorandums of understanding with neighbouring countries of Guatemala, expressed concern at the fact that undocumented foreign children, including victims of trafficking, are subject to deportation and must leave the country within 72 hours.

The Committee notes the Government’s indication that a new Inter institutional Protocol for the repatriation of victims of trafficking was adopted in December 2009. It observes that the Protocol is not yet implemented in practice. The Committee notes that, according to the information contained in the technical progress report of June 2010 on the ILO–IPEC project entitled “Elimination of Child Labour in Latin America (Phase III)”, the Protocol was drawn up with the support of ILO–IPEC and reviewed by the various cooperation agencies, including the International Organization for Migration. The Committee requests the Government to provide information on the implementation of the Inter-institutional Protocol for the repatriation of victims of trafficking. It once again requests the Government to provide information on the measures taken to ensure the rehabilitation and social integration of child victims removed from trafficking for commercial sexual exploitation in their country of origin.

The Committee is raising other points in a request addressed directly to the Government.