Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the Government’s report and the observations made by the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 3 September 2015.

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing opposition to the established 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 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 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 notes that the Government has not provided any information in its report on the measures taken to amend or repeal these provisions of the Labour Code. It refers to various provisions of the national legislation regulating prison work and indicates that work by convicted persons is part of their rehabilitation and cannot be considered to be of a compulsory nature. The Committee observes in this regard that, although section 65 of the Act on prison organization (Decree No. 33-2006) provides that during the treatment phase detainees may perform productive work, following authorization by the prison authorities, section 17 refers to work as “a right and a duty” and section 47 of the Penal Code provides that “work by detainees shall be compulsory and shall be paid.” Under these conditions, noting that, according to the Government, work by persons convicted to a sentence of imprisonment does not appear in practice to be of a compulsory nature, the Committee trusts that the Government will take the necessary measures to amend section 47 of the Penal Code accordingly.

In this respect, the Committee 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). It observes in this respect that, further to the complaint made under article 26 of the Constitution for non-observance by Guatemala of Convention No. 87, a roadmap was adopted by the Government in 2013 in consultation with the social partners. In this framework, the Government undertook to submit to the Tripartite Commission on International Labour Affairs draft texts of the necessary legislative reforms to ensure the conformity of the national legislation with Convention No. 87. The Committee therefore urges the Government to adopt the necessary measures with a view to amending or repealing the provisions of sections 419, 390(2) and 430 of the Penal Code to ensure, in accordance with Article 1 of Convention No. 105, that no person who participates in a strike or is in breach of labour discipline or opposes the established economic or social system may be penalized by a prison sentence involving compulsory prison labour.

The Committee also notes that the Government has not replied to the allegations made in 2012, and reiterated in 2015, by the MSICG concerning the criminalization of social protest and trade union action. 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. The Committee once again requests the Government to provide information on this matter.