Rapport intérimaire - Rapport No. 279, Novembre 1991

Cas no 1512 (Guatemala) - Date de la plainte: 03-OCT. -89 - Clos

1. 642. The Committee has already examined Case No. 1512 presented by the International Confederation of Free Trade Unions (ICFTU) on three occasions, and submitted interim reports. (See 222nd Report, paras. 527-561, 275th Report, paras. 364-400 and the 278th Report, paras. 382-399, approved by the Governing Body at its May-June, November 1990, and May-June 1991 Sessions, respectively.) Since then, the Government has sent comments, observations and information on this case in a communication dated 17 September 1991.
2. 643. The Committee examined Case No. 1539, presented by the World Confederation of Organisations of the Teaching Profession (WCOTP) and submitted an interim report. (See 278th Report, paras. 400-421.) Since then, the Government has sent comments, observations and information on this case in a communication dated 17 September 1991.
3. 644. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

• Case No. 1512
  645. 645 In the present case, the allegations of the International Confederation of Free Trade Unions (ICFTU) related mainly to death threats, abductions, forced disappearances, torture and violent death of trade unionists, as well as acts of repression by the authorities against strike movements. They also cited the refusal of the Government to recognise trade union leaders or to take steps to protect trade unionists against anti-union discrimination on the part of the employers.
  646. 646 When it examined this case at its May-June meeting 1991, the Committee made the following recommendations on the pending allegations (see 278th Report, para. 399):
       • (a) The Committee notes with deep regret that the Government has not replied to its previous recommendation concerning the serious infringements of human rights mentioned in this case and that it did not provide any information on the extremely serious allegations made by the complainant confederation.
       • (b) The Committee urges the Government, once again, to set up independent judicial inquiries into the alleged murder of José Orlando Pantaleón, a member of the Workers' Union of the Central Bottling Enterprise (STECSA) (Coca Cola), who, it was alleged, was abducted from his home at 10 a.m. and whose body, riddled with bullets and disfigured by torture, was found at 4 p.m. on 2 July 1989; the murder of nine peasants in Alta Verapaz, on 22 August 1989; the death of the leader of striking teachers, Carlos Humberto Rivera, abducted on 9 September 1989 by individuals travelling in a vehicle similar to those used by the army and found dead on the following day; the murder of Estanislao García y García, an activist in the Independent Agricultural Union, on 17 September 1989; the murder of José León Segura de la Cruz, the General Secretary of the Workers' Union of the National Electricity Institute, shot down on 27 September 1989 by two unidentified individuals while leaving his home for work; and the death of peasants in San Marcos (department of El Progreso) on 13 and 14 September 1989, and of peasants in the department of Quetzaltenango. The Committee asks the Government once again to inform it of the outcome of these inquiries.
       • (c) As regards the authority's slowness in granting legal personality to unions, the Committee urges the Government - following its assurances to accelerate proceedings for the registration of trade unions - to guarantee workers the right to establish organisations without previous authorisation and to workers' organisations the right to draw up their statutes and internal regulations without the public authorities interfering to restrict this right.
  647. Case No. 1539
  647. 647 The World Confederation of Organisations of the Teaching Profession (WCOTP) presented a series of allegations of violations of teachers' trade union rights in Guatemala. The allegations concerned acts of intimidation, violent deaths, death threats, abductions, repression and limitations on the right to strike which have tended to hinder the normal exercise of trade union activities.
  648. 648 At its May-June 1991 meeting, the Committee made the following recommendations (see 278th Report, para. 421):
       • (a) The Committee deplores the fact that the Government has sent no reply concerning the complaint presented by the World Confederation of Organisations of the Teaching Profession in June 1990, in spite of repeated requests that it do so.
       • (b) As regards the murder and disappearance of teachers belonging to the Guatemalan Education Workers' Trade Union (STEG) (October 1989, 6 December 1989) and the murder of five students who participated in the strike called by the teachers' trade union, the Committee deeply deplores these murders and requests the Government to state, as soon as possible, whether inquiries have been opened into these events, and, if so, to indicate the outcome of the same; likewise, it requests the complainant organisation to provide detailed information on the identity of the victims and the circumstances surrounding these murders and disappearances.
       • (c) Concerning threats to the lives of, and other serious forms of intimidation against STEG trade union leaders, including the trade union's General Secretary, Mr. Werner Miranda Calderón, by unknown armed persons in vehicles without registration plates, and the particularly serious incident in which a member of the trade union was allegedly abducted by members of the secret police and subjected to inhumane treatment, the Committee deplores this type of practice, and urges the Government to adopt suitable measures as soon as possible to prevent any kind of threat of psychological or physical intimidation against trade union leaders and members affected by these serious events. Likewise, it requests the Government to state whether inquiries have been opened into these serious allegations, and if so to indicate the outcome of the same.
       • (d) As regards the arrest of trade unionist teachers who participated in the May-August 1989 strike, the Committee draws the Government's attention to the principle according to which the right of workers and their organisations to strike constitutes one of the essential means available to them to promote and defend their occupational interests. It requests the Government to indicate whether the trade unionists who were arrested have been released and whether judicial proceedings have been instituted against them.
       • (e) As regards the anti-union discrimination inflicted on the strikers (such as the dismissal of teachers and the financial sanctions imposed on them), the Committee requests the Government to supply its observations on these allegations and, in particular, to indicate whether the dismissed teachers have been reinstated.
       • (f) The Committee requests the Government to send it a copy of the Act on National Education adopted on 9 January 1991.

B. New observations of the Government

• Case No. 1512
  649. 649 In a communication of 17 September 1991, the Government states that the allegations could not be attributed to the present Government which came to power on 15 January 1991. As regards the general climate in Guatemala, the Government explains that the civil war which has been going on for the last few years gives rise to violence and crime which affect not only members and leaders of trade unions, but also politicians, public officials, members of the police force, leaders of peoples' organisations, workers, peasants and the population at large. The Government states that it is making every effort to quell the widespread violence, and notes that considerable progress has been made, thanks to three particular measures: setting up of a "Tranquilidad Immediata Poblacional (TIP)" neighbourhood security system, reactivating the civilian protection system (SIPROCI) and opening dialogue with the guerilla movement, the Guatemalan Revolutionary Union (URNG).
  650. 650 The Government also points out that persons who have suffered in this climate of violence, members of their families and trade union organisations only rarely lodge detailed complaints which, it believes, leads to a considerable delay in judicial proceedings, the main problem being a lack of evidence which could further inquiries.
  651. 651 The Government explains, nevertheless, that a panel of jurists has been set up with a view to investigating cases pending before the Committee. The panel's findings are as follows:
       • (a) As regards the alleged murder, on 2 July 1989, of José Orlando Pantaleón, a trade unionist of the Central Bottling Enterprise (STECSA) (Coca Cola), the Government states that the penal court and the government procurator's office have begun an examination of the case. A series of measures have been taken aimed at shedding light on the facts of the case. On 14 February 1991, the widow of the deceased appeared before the procurator of human rights laying blame for the killing on Mr. Rolando Alay who is currently at the Pavón rehabilitation centre, charged with murder. The competent courts will decide the guilt or innocence of the accused.
       • (b) As regards the alleged murder of the teachers' strike leader, Carlos Humberto Rivera, the Government points out that proceedings have begun before the criminal chamber of the magistrates' court and that the Public Prosecutor's Office competent in human rights matters is also making inquiries. On 17 September 1991, the trial was at the preparatory inquiry stage due to a lack of evidence making it possible to identify the guilty party.
       • (c) As regards the alleged murder of Estanislao García y García, an activist of the Independent Agricultural Union, the Government points out that the day after his disappearance, the justice of the peace of Cuyotenango, in the department of Suchitepéque, gave the order for a body to be removed and which, subsequently, it has not been possible to identify. According to the Government, it should be noted that no complaint relating to the abduction or murder of Mr. García y García has ever been lodged before the courts or the office of the Public Prosecutor for human rights by members of the family of the missing person, by members of his union or any other party.
       • (d) The Second Court of First Instance of the Department of Chiquimula, and the Public Prosecutor's Office competent in human rights matters are looking into the case of the alleged murder of the General Secretary of the Workers' Union of the National Electricity Institute (STINDE), José León Segura de la Cruz. The subdepartment of the Public Prosecutor's Office is also actively involved and on 17 September 1991 named several persons who are allegedly responsible for the crime. If these persons fail to come forward for trial, steps will be taken to ensure their immediate imprisonment. The trial is going through the statutory phases of inquiry into crimes committed against Mr. Segura de la Cruz.
       • (e) As regards the alleged murder of nine peasants in the Department of Alta Verapaz on 22 August 1989, the Government reports to the Committee that there are two different versions of events. According to the first version, an armed confrontation took place between a subversive group and civil self-defence patrols (PACs). In the second version, the confrontation supposedly took place, by mistake, between these patrols and members of the army. At first, the case was dealt with by the Second Court of First Instance in the department of Alta Verapaz which, on 21 August 1989, ordered a summary inquiry to be carried out. The court then declared that it no longer had any grounds for continuing the investigation. The nature of the offence made it impossible for the case to be cleared up and the members of the patrol who survived the confrontation stated that they did not recognise the persons who led the attack. The case was then dealt with by the military court of the same jurisdiction which was also unable to further the inquiry. On 17 September 1991, the court took steps to order the suspension of the trial on grounds of having exhausted all channels of inquiry.
       • (f) The Court of First Instance of the Department of El Progreso and the Public Prosecutor's Office competent in human rights matters are looking into the alleged murder of peasants from this department. A person has been charged and the trial is under way.
       • (g) As regards the other allegations, particularly that of the murder of peasants at San Marcos and Quetzaltenango, the Public Prosecutor's Office competent in human rights matters and the Public Prosecutor's Office are taking all possible steps to elucidate the case. Given that the complaints are rather vague, a more in-depth inquiry is difficult.
  652. Case No. 1539
  652. 652 In the same communication of 17 September 1991, the Government provided comments on the recommendations arrived at by the Committee at the May-June 1991 meeting.
  653. 653 Firstly, the Government stresses that some of the allegations are of a rather general nature; the Government agrees with the Committee that the complainants must provide detailed information regarding the identity of the victims of the aforementioned allegations.
  654. 654 As regards the alleged detention of certain teacher trade unionists, the Government states that the persons in question were detained on grounds of offences which are "public order offences" under Guatemalan legislation, and not because of their participation in the teachers' strike. They have been freed and no coercion has been used against them.
  655. 655 The present Government declares that it did not dismiss any teachers on 17 September 1991, denies that there is a problem between itself and teachers, and points out that it has taken no economic measures against them. The wages withheld by the previous Government have been refunded.
  656. 656 The Government also sends a copy of the new Act on national education.

C. The Committee's conclusions

1. 657. The Committee notes that the Government has provided some of the information requested and that, on 15 January 1991, a new government came to power in Guatemala, resolved to dispel the climate of violence which prevails there. The Committee notes with interest the measures taken by the present Government to limit violence and crime stemming from the civil war and which affect not only trade union members and leaders, but also politicians, public officials, members of the public authority, leaders of peoples' organisations, workers, peasants and the population at large. However, faced with allegations of trade union rights violations by one government, the Committee recalls that the successive governments of a same State cannot, for the mere reason that a change has occurred, escape the responsibility which could flow from events that occurred under former governments. In any event, the new government is responsible for any continuing consequences which these events may have. Where a change of regime has taken place in a country, the new government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor. In this context, the Committee notes with interest that the Government has set up a panel of jurists to investigate the allegations made by the ICFTU.
2. 658. The Committee notes that certain allegations pending in the present cases concern the murder of activists of different Guatemalan trade unions. Included in these allegations is that relating to the murder of the leader of the teachers' strike, Carlos Humberto Rivera, who was supposedly arrested on 9 September 1989 in front of his home by individuals driving a vehicle resembling those used by the army, and whose lifeless body was found the following day with three other bodies of student leaders bearing marks of torture; the murder of Mr. José Orlando Pantaleón a member of the Workers' Union of the Central Bottling Enterprise (STECSA) (Coca Cola) who was allegedly abducted at 10 a.m. as he left his home and whose body was found at 4 p.m. the same day, disfigured by torture and riddled with five bullet holes; the murder of nine peasants from Alta Verapaz on 22 August 1989; the murder of an activist of the Independent Agricultural Union, Estanislao García y García on 17 September 1989; the murder of José León Segura de la Cruz, who was murdered at about 5 a.m. in the Department of Chiquimula, shot by two unidentified persons as he was leaving home to go to work; the death of peasants at San Marcos and in the Department of El Progreso on 13 and 14 September 1989 and that of peasants from the Department of Quetzaltenango; the murder and disappearance in October 1989 and on 6 December 1989 of teachers belonging to the STEG and the murder of five students who had joined the teachers' strike.
3. 659. The Committee notes that proceedings have begun in civilian, criminal or military courts in the cases of José Orlando Pantaleón, Carlos Humberto Rivera, José León Segura de la Cruz and the peasants from Alta Verapaz. With regard to the murders of José Orlando Pantaleón and José León Segura de la Cruz, persons have been charged and the courts will decide on their guilt or innocence. With regard to the cases of Carlos Humberto Rivera and the peasants from Alta Verapaz, the Committee notes that the trials under way will be suspended due to a lack of evidence helping to identify the guilty parties. The Committee also notes, with regard to the case of Estanislao García y García that it has been impossible to identify the body discovered at the site of his disappearance due to its advanced state of decomposition, and that no complaint has been brought before a court or the Public Prosecutor's Office responsible for human rights. With regard to the alleged assassinations of peasants in the Department of El Progreso and the Department of Quetzaltenango, and of teachers and five students in October and December 1989, the Committee notes that the vagueness of the allegations means that the competent authorities are unable to carry out inquiries. The Committee recalls that when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 78).
4. 660. With regard to pending allegations relating to death threats and other forms of intimidation against trade union activists, the Committee emphasises that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected (Digest, para. 70). The Committee notes with regret the failure of the Government to provide any information as regards the allegations of threats and other forms of intimidation against STEG leaders, in particular its General Secretary, Mr. Werner Miranda Calderón, and against another trade union member who was allegedly abducted and tortured. It repeats that in the event of an assault, whether physical or moral, against a person, an independent judicial inquiry should be instituted without delay so as to elucidate the facts, determine responsibility, punish the guilty parties and prevent the repetition of such actions. The Committee requests the Government to provide information on whether an inquiry is under way and, if possible, the outcome of the same.
5. 661. One of the allegations pending concerns the detention of teachers belonging to trade unions which took part in the May-August 1989 teachers' strike. The Committee notes that there is a contradiction between the WCOTP's allegation and the explanations provided by the Government, according to which the trade unionists in question were detained for acts described by law as public order offences. The Committee has always recognised the right of workers and their organisations to use strike action as a legitimate means of defending their economic and social interests and calls on the Government to respect this principle.
6. 662. As regards allegations relating to anti-union discrimination against strikers, such as the detention of teachers and economic sanctions, the Committee notes that the present Government has not dismissed teachers, has not taken economic sanctions against them and that, in general, there are no problems between the Government and teachers. However, the Committee stresses the link of continuity between successive governments and requests the present Government to indicate whether the teachers dismissed by the previous Government have been reinstated.
7. 663. The Committee, having taken note of the copy of the Act on national education adopted on 9 January 1991, requests the complainant organisation to provide its comments on the aspects of this Act concerning the present case, and on its practical application.

The Committee's recommendations

1. 664. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee, faced with allegations relating to violations of trade union rights by a given government, recalls that the successive governments of a same State cannot, for the mere reason that a change has occurred, escape the responsibility which could flow from events that occurred under a former government. In any event, the new government is responsible for any continuing consequences which these events may have.
   • (b) As regards the murders of José Orlando Pantaleón, José León Segura de la Cruz and Carlos Humberto Rivera the Committee notes that proceedings have been initiated to establish the facts surrounding these cases and requests the Government to provide information on their outcome.
   • (c) As regards the murders of the peasants from Alta Verapaz, the Committee regrets that the Military Court had ordered the suspension of the trial for lack of evidence.
   • (d) As regards the alleged murders of Estanislao García y García, peasants from the Departments of El Progreso and Quetzaltenango, striking teachers in October 1989, and five students in December 1989, the Committee notes that, according to information provided by the Government, the vagueness of the complaints filed means that the competent authorities are unable to carry out their inquiries.
   • (e) As regards the allegations of death threats and other serious forms of intimidation against STEG leaders, in particular against the General Secretary, Mr. Werner Miranda Calderón, and another member of the trade union who was allegedly abducted and subjected to inhumane treatment by members of the secret police, the Committee notes that the Government has failed to send any reply. The Committee invites the Government to adopt suitable measures as soon as possible so as to prevent any kind of threat of physical intimidation against trade union leaders and trade union members. Likewise, it requests the Government to state whether investigations have been opened into these serious allegations and, if so, to indicate their outcome.
   • (f) As regards the detention of trade unionist teachers who participated in the May-August 1989 strike, the Committee notes that, according to information provided by the Government, these teachers were detained for acts described by law as public order offences, and trusts the Government will renounce taking measures of detention in cases of the organisation of or participation in peaceful strikes.
   • (g) As regards the allegations of anti-union discrimination against strikers, such as the dismissal of teachers and economic sanctions, the Committee requests the Government to indicate whether the dismissed teachers have been reinstated.
   • (h) The Committee, having taken note of the copy of the new Act on national education adopted on 9 January 1991, requests the complainant organisation to provide comments on the aspects of this Act concerning the present case and on its practical application.