Interim Report - Report No 381, March 2017

Case No 2445 (Guatemala) - Complaint date: 31-AUG-05 - Closed

Allegations: Murders, threats and acts of violence against trade unionists and their families; anti-union dismissals and refusal by private enterprises and public institutions to comply with judicial reinstatement orders; harassment of trade unionists

1. 443. The Committee last examined this case at its October 2014 meeting, at which it presented an interim report to the Governing Body [see 373rd Report, approved by the Governing Body at its 322nd Session (November 2014), paras 310–323].
2. 444. The Government provided information in communications dated 13, 21, 22 and 26 January 2015, 22 February, 12 September and 28 October 2016, 31 January and 2 February 2017.
3. 445. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 446. At its October 2014 meeting, the Committee made the following recommendations [see 373rd Report, para. 323]:
   • (a) With regard to the investigations into the murder of union leader Julio Raquec, the Committee once again urges the Government to take all the necessary measures to identify once and for all the instigators and perpetrators of this murder and the motives for the crime and to ensure that the guilty parties are prosecuted and punished by the courts. Additionally, the Committee once again expects the Government to take, without delay, the appropriate measures to guarantee the safety of Mr Julio Raquec’s widow and that of their children. The Committee requests the Government to keep it informed of any developments in this regard.
   • (b) The Committee regrets that, despite the time that has elapsed since its last examination of the case, the Government has not sent observations on all the allegations pending from its examination of the case at its March 2010, March 2011, June 2012 and June 2013 meetings. Emphasizing that some of the alleged events are extremely serious and occurred in 2004, the Committee expects the Government to send all the information requested in the very near future. In this regard, the Committee once again reiterates the following recommendations:
     • – with regard to the death threats against members of the Trade Union Association of Itinerant Vendors of Antigua, the Committee once again urges the Government to take immediate steps to establish a protection mechanism for the persons who receive these threats and to institute an independent inquiry into these allegations without delay. The Committee requests the Government to keep it informed of the outcome of these actions;
     • – with regard to the allegations concerning the attempted murder of trade unionist Marcos Álvarez Tzoc, the Committee once again requests the Government to keep it informed with respect to the enforcement of the penalty imposed by the ruling of the Court of Criminal Judgment and urges the Government to take immediate steps to establish a mechanism to protect Mr Marcos Álvarez Tzoc;
     • – with regard to the alleged dismissal of workers at the El Tesoro Estate (municipality of Samayac) for submitting lists of claims during negotiations on a collective agreement, despite a judicial reinstatement order, the Committee again requests the trade union to which these trade unionists belong to request the competent legal authority to implement the reinstatement order; and
     • – with regard to the alleged threats against the employees of the General Directorate of Civil Aviation who participated in a protest in front of the building against the constant abuse by the administration (according to the allegations, the General Directorate’s chief maintenance officer threatened that they would be reported and subsequently dismissed, if they were five minutes late back to work, and then took photographs of them) and with regard to the intimidation by security officers against the members outside the room where the union’s general assembly was to be held, the Committee regrets that the Government has not sent its observations and urges it to do so without delay.
   • (c) The Committee once again firmly expects that the commitments assumed by the Government in the Memorandum of Understanding signed on 26 March 2013 between the Government of Guatemala and the Workers’ group of the ILO Governing Body, as well as the efforts made to implement it, will be translated into tangible results with respect to the allegations still pending in this case. The Committee urges the Government to inform it of the outcome of these actions as soon as possible.
   • (d) The Committee draws the Governing Body’s special attention to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 447. In a communication of 13 January 2015, the Government sent information provided by the judiciary relating to the criminal proceedings concerning the attempted murder of the trade unionist Mr Álvarez Tzoc, stating that: (i) on 15 January 2014, a hearing was held at which Mr Julio Enrique Salazar Pivaral, the perpetrator of the attempted murder, was given a ten-year prison sentence, and the National Civil Police was ordered to arrest him; and (ii) to date, this arrest warrant has not been executed by the National Civil Police. The Government highlights that it is clear from the judicial decisions in the case that the motives for the attempted murder were completely unrelated to Mr Álvarez Tzoc’s trade union activity, but were related to him allegedly stealing bananas.
2. 448. In a communication of 21 January 2015, the Government sent information provided by the Public Prosecutor’s Office concerning the allegations of death threats against members of the Trade Union Association of Itinerant Vendors of Antigua (hereinafter the Itinerant Vendors’ Trade Union). In this regard, the Government states that: (i) on 17 February 2012, the Minister of Labour and Social Welfare requested the Public Prosecutor’s Office to carry out an investigation into the death threats; (ii) on the basis of the proceedings filed by the Public Prosecutor’s Office, it was able to access the file on the complaint lodged on 19 March 2005 with the District Prosecutor’s Office of Antigua by five members of the Itinerant Vendors’ Trade Union, alleging assault by municipal police officers; (iii) at that time, the forensic physician of the justice agency was able to confirm that the complainants had minor injuries with a healing time of eight days and without any visible scars; (iv) based on the above and in accordance with the Criminal Code, the District Prosecutor’s Office of Antigua qualified the assaults as minor offences and referred the case to the magistrate’s court judge of Antigua; (v) on 11 May 2005, Ms Higinia Concepción López, one of the five complainants and the only one who gave an address, was called on to provide further details concerning the complaint and details and addresses so that the other complainants could be contacted; (vi) Ms Concepción López did not appear at the interview and had no further contact with the Public Prosecutor’s Office; and (vii) under the Criminal Code, the statutes of limitation for the offences reported by the complainants lapsed after six months, which is why the case was shelved. The Government adds that the Public Prosecutor’s Office was not able to carry out an investigation ex officio concerning the alleged death threats because, under the current legal system, legal proceedings can only be instituted for threats when an individual files a complaint. Lastly, the Government states that, based on the information provided by the Ministry of Labour in 2012 and the contact made at the time with the General Confederation of Workers of Guatemala, the Itinerant Vendors’ Trade Union has been headless and inactive since 2007.
3. 449. In a communication of 22 February 2016, providing an update on the content of an earlier communication dated 26 January 2015, the Government sent information concerning the status of the investigations into the murder on 28 November 2004 of Mr Raquec Ishen, Secretary-General of the Trade Union Federation of Informal Workers. Based on the information provided by the Public Prosecutor’s Office, the Government once again states that Ms Lidia Mérida Coy (an eyewitness and the victim’s partner) has refused to cooperate; she refuses to identify the possible perpetrators. In addition, the Government indicates that in May 2015, Mr Victoriano Zacarías, of the CGTG, was asked at a trade union round table meeting for his full cooperation in making Ms Mérida Coy aware of the need to cooperate in the investigation. However, to date, this has not been possible. The Government also indicates that Ms Lesbia Aracely Rodríguez Solís (another eyewitness to the event) was interviewed; in relation to the event, she stated that could not see the young people with whom Ms Mérida Coy was arguing on the day in question.
4. 450. In a communication of 31 January 2017, the Government states that on 23 January 2017, orders were made to (i) implement perimeter security measures for Ms Lidia Mérida Coy de Sorayda Ninethe Raquec Mérida, Karina Yanethe Raquec Mérida and Dennis Orlando Raquec Mérida; and (ii) conduct a risk assessment to determine the current level of risk to which the above persons are exposed.
5. 451. In a communication of 2 February 2017, the Government provided its observations regarding the allegations of threats of dismissal and acts of intimidation against the employees of the General Directorate of Civil Aviation. The Government states that: (i) on 21 January 2015, the Ministry of Labour and Social Welfare held a meeting with Ms Imelda López de Sandoval, Secretary-General of the Union of Workers of the General Directorate of Civil Aviation (STAC); (ii) the Secretary-General stated that protests had been staged at the Civil Aviation facilities against the violation of women workers’ rights to maternity leave and breastfeeding leave but, that the threats and acts of intimidation mentioned in the complaint had not occurred; (iii) despite the agreement made in that meeting, Ms Imelda López did not submit her written statement; (iv) at a mediation meeting held in 2016, the Committee for the Settlement of Disputes before the ILO in the area of Freedom of Association and Collective Bargaining examined the complaint brought by the STAC, whose leaders had stated that no threat, restriction or violation of any kind existed against freedom of association or collective bargaining; and (v) the Committee for the Settlement of Disputes is looking forward to receiving the STAC’s written submission stating that the difficulties that motivated the presentation of this aspect of the complaint have been resolved.
6. 452. The Government also sent communications dated 22 January 2015, 12 September 2016 and 28 October 2016 concerning allegations for which the Committee had not pursued its examination.

C. The Committee’s conclusions

1. 453. The Committee recalls that the case under examination refers to allegations of murder, threats and acts of violence against trade unionists and their families, as well as anti-union dismissals and other acts. The Committee further recalls that, since the presentation of this complaint in 2005, it has examined this case on eight occasions.
2. 454. With regard to the investigations into the murder of Mr Raquec Ishen, Secretary-General of the Trade Union Federation of Informal Workers, on 28 November 2004, the Committee notes that the Government reiterates that the main witness to the murder, Ms Mérida Coy, the victim’s partner, continued to refuse to testify. The Committee also notes that the Government states that: (i) the Secretary-General of the General Confederation of Workers of Guatemala was contacted in May 2015 to make Ms Mérida Coy aware of the importance of her participating in the investigations but that this did not bear fruit; (ii) the second eyewitness to the crime was interviewed but said that she could not see the young people with whom Ms Mérida Coy was arguing at the time of the event. The Committee also notes, on the basis of the information the Governing Body of the ILO was furnished with in October 2016 as part of the follow-up to the complaint brought against Guatemala under article 26 of the ILO Constitution for the violation of ILO Convention No. 87, that the Government indicated that the witness statements of the police officers who drew up the crime report are still pending.
3. 455. While noting the information from the Government, the Committee once again notes with regret that, despite the investigations having identified a suspect, they have not led to those responsible being prosecuted or punished. The Committee notes with great concern that, more than 12 years after the crime, the police officers who recorded the murder of Mr Raquec Ishen have not been identified and interviewed. The Committee recalls that the right to life is a fundamental prerequisite for the exercise of the rights contained in Convention No. 87 and that the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, paras 42 and 52]. The Committee emphasizes that it is essential in combating impunity for those who planned and carried out this murder, and the motives of the crime, to be clarified once and for all and for the perpetrators to be prosecuted and punished by the courts. The Committee once again urges the Government to take all the necessary measures in this regard and to keep it informed of any developments.
4. 456. The Committee had requested, in its previous reports concerning this case, that the Government provide information on the measures taken to guarantee the safety of Mr Raquec Ishen’s partner, Ms Mérida Coy, and their children. The Committee notes the Government’s indications that orders were made on 23 January 2017 to: (i) implement perimeter security measures for Ms Lidia Mérida Coy de Sorayda Ninethe Raquec Mérida, Karina Yanethe Raquec Mérida and Dennis Orlando Raquec Mérid; and (ii) conduct a risk assessment to determine the current level of risk to which the above persons are exposed. While noting with concern that it took over 12 years to adopt the above measures, the Committee requests the Government to keep it informed of the outcome of the risk assessment and any security measures adopted as a result.
5. 457. In relation to the attempted murder of Mr Álvarez Tzoc in January 2003, the Committee notes the Government’s statement that: (i) in January 2014 a hearing was held at which the perpetrator was given a ten-year prison sentence and the National Civil Police was ordered to arrest said person, although this order has not, to date, been followed; and (ii) the judicial decisions in this case show that the attempted murder was unrelated to Mr Álvarez Tzoc’s trade union activities. In this regard, recalling that, according to the complainant organization’s allegations, the perpetrator of the attempted murder was the victim’s employer and that the assault was preceded by harassment towards the trade union organization of which Mr Álvarez Tzoc was a member of the executive committee, the Committee notes that, 14 years after the events and more than ten years after the decision was handed down, the decision has still not been enforced. The Committee considers that these circumstances give rise to concern as to the climate of impunity for acts of violence against trade union members in the country. The Committee therefore requests the Government to send a copy of the judgment which clearly indicates that the motive of the crime is not related to the trade union activity of the victim. In addition, the Committee requests the Government to indicate the reasons for having not yet executed the criminal sanction ordered in respect of the attempted murder and once again expresses the firm hope that the aforementioned criminal sanction will be executed as soon as possible.
6. 458. Lastly, the Committee notes that the Government has not provided information regarding the possible measures taken to ensure the safety of Mr Álvarez Tzoc. Noting that, through evidence provided to the Governing Body of the ILO, within the framework of the follow-up to the abovementioned complaint filed under article 26 of the ILO Constitution, the Government reported, in October 2016, the adoption, with the approval of the trade union movement, of the Protocol for the Implementation of Immediate and Preventive Security Measures for trade union members and leaders and labour rights activists, the Committee again urges the Government to provide information without delay concerning the action taken, in accordance with the above Protocol, to evaluate the need to ensure protective measures for Mr Álvarez Tzoc.
7. 459. Regarding the allegations of death threats against members of the Itinerant Vendors’ Trade Union, the Committee notes the Government’s statement that: (i) the complaint presented in 2005 by the members of the Itinerant Vendors’ Trade Union concerning physical assault by the municipal police was closed on account of the complainants’ failure to appear before the court and the statute of limitations for the offences reported; (ii) in response to the request to investigate made by the Ministry of Labour and Social Welfare in 2012, the Public Prosecutor’s Office indicated that, pursuant to the Criminal Code, the investigations into the threats could not be carried out ex officio but could be pursued only at the request of an individual party; the Itinerant Vendors’ Trade Union did not file a complaint to that end; and (iii) the Itinerant Vendors’ Trade Union has been headless and inactive since 2007. While duly noting this information, the Committee notes with deep regret, particularly in a context of frequent and serious acts of anti-union violence, that the Government took seven years before taking action on the allegation of death threats against trade unionists by members of the police force. In the absence of a legal possibility to carry out an ex officio criminal investigation with regard to allegations of death threats and observing that the allegations concerned police action, the Committee requests the Government to carry out an internal investigation within the police force with respect to these matters, stressing that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44]; the Committee therefore urges the Government in the strongest possible terms to ensure that, in future, any reports of acts of anti-union violence against, threats to or harassment of members of the trade union movement trigger immediate and effective investigations by the competent public authorities and the implementation of adequate protection measures. The Committee emphasizes that the taking of such measures is an essential element in upholding the rule of law.
8. 460. Regarding the alleged threats of dismissal and intimidation to which the workers of the General Directorate of Civil Aviation were allegedly subjected because they had participated in a protest in 2007, the Committee notes the Government’s observations of February 2017 indicating that both the Ministry of Labour and Social Welfare in 2015 and the Committee for the Settlement of Disputes in 2016 met with the STAC leaders, who verbally denied the threats and acts of intimidation and stated that the difficulties with the employer had been resolved.
9. 461. With regard to the alleged dismissal of workers at the El Tesoro Estate (municipality of Samayac) for submitting lists of claims during negotiations on a collective agreement, the Committee recalls that since its 2007 report it has been requesting the trade union to which these trade unionists belonged to call on the competent legal authority to enforce the reinstatement order. Since it has not received information from the complainant organizations in this regard, the Committee will not pursue its examination of this allegation any further.
10. 462. In general, the Committee once again firmly expects that the commitments made by the Government in the roadmap referred to and the efforts made to implement it will be translated into tangible results with respect to the allegations still pending in this case.

The Committee’s recommendations

1. 463. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • With regard to the investigations into the murder of union leader Mr Raquec Ishen, the Committee once again urges the Government to take all necessary steps to identify once and for all the perpetrators and instigators of this murder and the motives for the crime, and to ensure that the guilty parties are prosecuted and punished by the courts. The Committee requests the Government to keep it informed of any developments.
   • The Committee requests the Government to keep it informed of the outcome of the risk assessment for Ms Mérida Coy and her children and of any security measures taken as a result.
   • (c) The Committee requests the Government to send a copy of the judgment which clearly indicated that the motive of the attempted murder of Mr Marcos Álvarez Tzoc was not related to the trade union activity of the victim. The Committee requests the Government to indicate the reasons for having not yet executed the criminal sanction ordered in respect of this attempted murder and once again expresses its firm hope that this sanction will be enforced without delay. It requests the Government to keep it informed in this respect.
   • (d) The Committee urges the Government to provide, without delay, information on the action taken, in accordance with the Protocol for the Implementation of Immediate and Preventive Security Measures for trade union members and leaders and labour rights activists, to evaluate the need to ensure protective measures for Mr Álvarez Tzoc.
   • With respect to the allegations of death threats against members of the Itinerant Vendors’ Trade Union by municipal police officers, in the absence of a legal possibility to carry out an ex officio criminal investigation, the Committee requests the Government to carry out an internal investigation within the police force on this matter.
   • (f) The Committee urges the Government, in the strongest possible terms, to ensure that, in future, any reports of acts of anti-union violence against, threats to or harassment of members of the trade union movement trigger immediate and effective investigations by the competent public authorities and the implementation of adequate protection measures.
   • (g) The Committee firmly expects that the commitments made by the Government in the Memorandum of Understanding signed on 26 March 2013 between the Government of Guatemala and the Chairperson of the Workers’ group of the ILO Governing Body, as well as the efforts made to implement it, will be translated into tangible results with respect to the allegations still pending in this case.
   • (h) The Committee draws the Governing Body’s special attention to the extreme seriousness and urgent nature of this case.