Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee notes the Government’s first and second reports. It notes with interest that the Government adopted the Act on the integral protection of childhood and adolescence in 2003. It requests the Government to provide information on the following matters.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes with interest that on 25 November 2002 the Government renewed the Memorandum of Understanding (MOU) with ILO/IPEC. The Committee also notes that the National Commission for the Elimination of Child Labour and the Protection of Young Workers is currently drawing up a "Strategic Plan for the elimination of the worst forms of child labour in Guatemala (2004-06)", a copy of the draft of which was provided to the Office. The Committee requests the Government to provide information on any progress achieved in the adoption of this Plan.

Article 3. Worst forms of child labour. The Committee notes the draft reform of the Labour Code transmitted by the Government, which has been submitted to the legislative authorities for adoption. In this respect, it notes with interest that the draft reform of the Labour Code prohibits young persons under 18 years of age from being engaged in types of hazardous work and in the worst forms of child labour. The Committee requests the Government to provide information on developments in this respect.

Clause (a). 1. Sale and trafficking of children for economic exploitation. The Committee notes that section 194 of the Penal Code establishes a penalty for any person who, in any manner whatsoever, facilitates, encourages or causes the entry or removal from the country of women and men for the purposes of prostitution. Noting that section 194 of the Penal Code concerns the sale and trafficking of persons for the purposes of sexual exploitation, the Committee reminds the Government that Article 3(a) of the Convention also covers the sale and trafficking of young persons under 18 years of age for the purposes of economic exploitation. It notes that the national legislation does not appear to contain a provision prohibiting this form of exploitation. It therefore requests the Government to provide information on the measures adopted or envisaged to secure the prohibition of the sale and trafficking of young persons under 18 years of age for the purposes of economic exploitation.

2. Slavery, debt bondage, serfdom and forced or compulsory labour. The Committee notes the Government’s indication that no case of slavery or similar practices has been reported in the country. It also notes that under Article 4 of the Constitution, no person may be subjected to servitude or any other condition infringing her or his dignity.

3. Forced or compulsory recruitment of children for use in armed conflict. In May 2002, Guatemala ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Section 57 of the Act of 2003 on the integral protection of childhood and adolescence provides that in the event of armed conflict, boys, girls and young persons have the right not to be recruited and that the State shall secure compliance with the standards of applicable international humanitarian law. The State shall take all possible measures to ensure that persons under 18 years of age do not participate directly in hostilities and are not at any time recruited for military service. While noting this information, the Committee however observes that the national legislation does not appear to contain a provision implementing section 57. It requests the Government to provide information on the manner in which section 57 of the Act on the integral protection of childhood and adolescence is applied in practice.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee notes that section 188 of the Penal Code establishes a penalty for any person who, in any manner whatsoever, facilitates, encourages or causes the prostitution or sexual corruption of a minor, even if the victim consents to participate in sexual acts or to witness their performance. Section 190 of the Penal Code provides that any person who, by means of a promise or agreement, even when lawful in appearance, promotes or occasions the prostitution or sexual corruption of a minor is liable to be penalized. Furthermore, under section 191 of the Penal Code, any person who with a view to gain or with the intention of satisfying the desires of another person, facilitates, encourages or causes prostitution, without distinction as to sex, is liable to a fine. Under the terms of section 192(1) of the Penal Code, the penalty established for the crime of procuring is aggravated if the victim is a minor.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes that the national legislation does not appear to contain a provision prohibiting the use, procuring or offering of a person under 18 years of age for the production of pornography or for pornographic performances. The Committee therefore requests the Government to indicate the measures adopted or envisaged with a view to prohibiting any person from using, procuring or offering young persons under 18 years of age for the production of pornography or for pornographic performances, in accordance with Article 3(c) of the Convention. It also requests the Government to adopt provisions establishing appropriate penalties in this respect. In this regard, the Committee draws the Government’s attention to its obligation under Article 1 (read with Article 3(a)) to take immediate measures to secure the prohibition of this form of child labour.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee notes that the national legislation does not appear to contain a provision prohibiting the use, procuring or offering of a young person under 18 years of age for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties. It reminds the Government that, under the terms of Article 1 of the Convention, each Member which ratifies it shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee therefore requests the Government to indicate the measures adopted or envisaged to secure the prohibition and elimination of the use, procuring or offering of a young person under 18 years of age for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, in accordance with Article 3(c) of the Convention.

Article 3(d) and Article 4, paragraph 1. Types of hazardous work and the determination of the list of types of hazardous work. The Committee notes that section 148 of the Labour Code prohibits work by minors: (a) in unhealthy and hazardous places, as determined by regulation or by the labour inspection services; (c) at night and for the performance of additional hours; and (d) in kiosks or other similar establishments selling alcoholic beverages. The Committee notes with interest that, following multi-sectoral consultations, the Government has determined a detailed list of 29 types of hazardous work.

Article 4, paragraph 2. Identification of where types of hazardous work exist. The Committee notes the information provided by the Government that the rapid assessments undertaken by ILO/IPEC have made it possible to identify the existence of the worst forms of child labour in certain departments of the country. For example, children are reported to be used in: stone cutting in Retalhuleu; quarries in Progreso and Huehuetenango; lime preparation in Huehuetenango; rubbish collection and the handling of explosives in the department of Guatemala; and the handling of explosives in the municipality of San Raymundo and San Pedro Sacatepéquez. Furthermore, the Committee notes with interest that, according to the document "Hazardous work by children and young persons: Identification, location and definition - The worst forms of child labour in Guatemala", the Government has identified the geographical areas in which children employed in the 29 types of work determined as being hazardous are mainly to be found.

Article 5. Mechanisms to monitor the implementation of the provisions giving effect to the Convention. 1. Labour inspection services. The Committee notes that sections 278 to 282 of the Labour Code cover the labour inspection system. In this respect, it notes that under section 278(1) of the Labour Code, the labour inspectorate, through its inspectors and social workers, shall secure the application and compliance with the legislation and collective agreements that are in force governing conditions of work and social security. Section 281 of the Labour Code establishes the responsibilities and rights of labour inspectors and social workers. Under the terms of this provision, labour inspectors and social workers may carry out inspections in any workplace whatsoever, at any hour of the day and night; examine the registers of employees and payslips; and examine the health conditions of workplaces. The Committee requests the Government to provide information on the activities of the labour inspection services, particularly with regard to the worst forms of child labour, by providing extracts of reports and documents. It also requests the Government to provide information on the consultations held with organizations of employers and workers in accordance with the provisions of this Article.

2. Unit for the Protection of Young Workers. The Committee notes the information provided by the Government that the Unit for the Protection of Young Workers of the Ministry of Labour and Social Security, established by the Act on the integral protection of childhood and adolescence (section 94), is one of the institutions which ensures the application of the provisions of the Convention. This Unit is entrusted with carrying out inspections to monitor the implementation and compliance with labour legislation, collective agreements and individual labour contracts and with developing internal and external institutional coordination mechanisms. The Committee requests the Government to provide information on the activities of the Unit for the Protection of Young Workers and on the measures adopted to establish an appropriate mechanism to monitor the implementation of the Convention. It also requests the Government to provide information on the outcome of the various inspections undertaken by the Unit in relation to the worst forms of child labour, particularly through extracts of reports or documents.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the "National Plan for the prevention and elimination of child labour and the protection of young workers (2001-2004)", which was developed following the consultations held from 1999 to 2001 by the Government with civil society. The National Plan principally covers ten departments in the country, namely, Quiché, Huehuetenango, Alta Verapaz, Totonicapán, Sololà, San Marcos, Izabal, Zacapa, Petén and Jalapa. The principal objective of the National Plan is to prevent and eliminate child labour, with emphasis on the immediate elimination of the worst forms of child labour and hazardous types of work. Its specific objectives are education, health, the promotion of adult employment, protection, research and social mobilization, as well as assistance and evaluation. The Committee requests the Government to provide information on the implementation of the "National Plan for the prevention and elimination of child labour and the protection of young workers (2001-2004)" and the results obtained.

Article 7, paragraph 1. Penalties. The Committee notes that section 188 of the Penal Code establishes a penalty of between two and six years of imprisonment for any person who is found guilty of causing the prostitution or sexual corruption of a young person. Section 190 of the Penal Code also establishes a penalty of from one to three years of imprisonment for any person found guilty of causing the prostitution or sexual corruption of a young person by means of a promise or agreement. Furthermore, under section 191 of the Penal Code, any person found guilty of procuring is liable to a fine of between 500 and 2,000 quetzales. Under the terms of section 192(1) of the Penal Code, the penalty laid down for the crime of procuring is aggravated where the victim was a young person. Finally, section 272 of the Labour Code provides for fines of between 1,500 and 5,000 quetzales for the violation of any of its provisions. The Committee requests the Government to provide information on the application of these penalties in practice.

Paragraph 2. Effective and time-bound measures. Clause (a). Prevent the engagement of children in the worst forms of child labour. 1. Programme for the elimination of child labour in the coffee industry in San Marcos. The Committee notes that this Programme covers 1,500 families, composed of 3,000 parents, 600 young persons of between 15 and 18 years of age and 4,000 children under 14 years of age. Under the Programme, some 7,170 children have benefited from the active education programme, 4,000 have received education grants and 1,400 have been prevented from working through the establishment of 35 pre-school teaching centres. The Committee requests the Government to continue providing information on the implementation of this Programme and on the results achieved.

2. Education. The Committee notes that, according to the report of January 2000 of the United Nations Special Rapporteur on the sale of children, child prostitution and child pornography (E/CN.4/2000/73/Add.2, paragraph 8), among persons aged 7 and above the literacy rate is around 60 per cent. However, in rural areas, 70 per cent of the population is illiterate, compared to 30 per cent in urban areas. Some 40 per cent of the indigenous population cannot read Spanish, the official language of the country. The Committee is of the view that education contributes to eliminating the worst forms of child labour. It requests the Government to provide information on the effective and time-bound measures taken to prevent the engagement of those children, and particularly children in urban areas and indigenous children, in the worst forms of child labour.

Clause (b). Assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. 1. Children affected by armed conflict. The Committee notes that, in its second periodic report to the Committee on the Rights of the Child in March 2000 (CRC/C/65/Add.10, paragraphs 240 and 241), the Government indicated that children and young persons were affected in a variety of ways by the armed conflict which lasted approximately 40 years. According to official estimates, there are 200,000 orphans and 40,000 widows, and during the most violent phase of the armed conflict, 73,000 children and young persons lived with their families in the mountains, surviving in resistance communities. The Government added that it was only in 1995 that it recognized the status of these groups as non-combatant civilians (Confregua). In addition, 200,000 people are thought to have taken refuge abroad, particularly in Mexico, and over 1 million were internally displaced. According to the Government, all these factors had a direct impact on physical, mental and emotional health, access to education, family cohesion and relationships, and the preservation of the identity of thousands of children, particularly indigenous children. The latter suffered in particular from forced recruitment (a practice that has fortunately now ceased), both into the ranks of the national armed forces and into the Civil Self-Defence Patrols (PAC) and the forces of the National Guatemalan Revolutionary Union (URNG). In its concluding observations in July 2001 (CRC/C/15/Add.154, paragraphs 48 and 49), the Committee on the Rights of the Child noted that the Government had launched an action plan for the psycho-social rehabilitation of children affected by the armed conflict based on a preventive programme with community participation. However, the Committee on the Rights of the Child expressed concern at the lack of professional staff prepared to work in these communities and at the insufficient number of services to meet the demand. It also noted with concern that a high number of children were internally displaced or forcibly disappeared during the armed conflict and that the Government did not investigate these disappearances effectively. The Committee on the Rights of the Child therefore recommended that the Government consider complying with the recommendations of the Truth Commission for a national reparation programme which would also cover children affected by the internal armed conflict and that it should investigate effectively all cases of children who were forcibly disappeared by allocating human and financial resources to and cooperating with the National Commission to search for disappeared children. The Committee on the Rights of the Child also recommended that the Government should strengthen its efforts to implement the Programme to support the resettlement of displaced groups and to ensure adequate protection to internally displaced children, with special attention to the problem of lack of identification papers. The Committee of Experts requests the Government to provide information on the measures adopted to follow up the recommendations of the Committee on the Rights of the Child, particularly with regard to measures to secure the rehabilitation and social integration of children and young persons affected in various ways by the armed conflict.

2. Programme for the elimination of child labour in the production of broccoli in Chilascó, Baja Verapaz Guatemala. The Committee notes that, according to the information available to the Office, children are engaged in agricultural work from the age of 5 years. Some of them share their time between school and work, while others are not able to attend school. Furthermore, most of those who divide their time between school and work finish school as of the first years of primary education so as to work full time. The Committee notes that direct action was undertaken in 2002 under the Programme with the Chilascó community. In particular, with a view to preventing boys and girls from being engaged at a very early stage in productive activities, measures were taken for them to attend school. The Committee requests the Government to provide information on the results of the "Programme for the elimination of child labour in the production of broccoli", with an indication of the number of children who benefited directly or indirectly from the Programme by being removed from types of hazardous work and reintegrated into school.

3. Peace grants. The Committee notes the information provided by the Government that, with the assistance of ILO/IPEC, Guatemala is a beneficiary of the programme of "peace grants", through which the Government makes it possible for children engaged in types of hazardous work to attend school. According to the information available to the ILO, the Government signed an agreement in January 2004 ensuring the extension of the programme for five years, which would benefit over 10,000 boys and girls who are in the process of being removed from work. The Committee requests the Government to provide detailed information on the "peace grants" programme, particularly with regard to the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration.

Clause (d). Children at special risk. Children living in the streets. The Committee notes that, in its concluding observations on the Government’s second periodic report in July 2001 (CRC/C/15/Add.154, paragraphs 54 and 55), the Committee on the Rights of the Child expressed concern at the significant number of children living in the streets and noted that assistance to these children is generally provided mainly by non-governmental organizations. The Committee on the Rights of the Child recommended the Government to expedite the adoption of a National Plan for the care of street children and to ensure that children living in the streets are provided with nutrition, clothing, housing, health care and education, including vocational and life-skills training, in order to support their full development. The Government was also encouraged to ensure that these children are provided with rehabilitation services following physical, sexual and substance abuse, protection from police brutality and services for reconciliation with their families. The Committee notes that the Government has prepared a "National Plan for the protection of boys, girls and young persons in the street". The Committee notes the document entitled "Public Policy and National Plan of Action for Childhood (2004-15)". According to this document, in 2005 the Government envisages evaluating the results achieved by the National Plan with a view to the adaptation of the action undertaken. Furthermore, in 2007 the Government plans to: establish a national database system for boys, girls and young persons in the street; develop a system with the objective of preventing children from living in the streets; and implementing specialized support programmes for street children, including programmes of assistance for their rehabilitation and social, educational and family integration. The Committee considers that children living in the streets are at special risk of the worst forms of child labour. It therefore requests the Government to provide information on the implementation of the "National Plan for the protection of boys, girls and young persons in the street" and the "Public Policy and National Plan of Action for Childhood (2004-2015)" and the results achieved, particularly in relation to the protection of children living in the streets from the worst forms of child labour and their rehabilitation and social integration.

Clause (e). Special situation of girls. According to the report entitled "Understanding child labour in Guatemala", published in September 2003 by ILO/IPEC, a fairly high number of girls are engaged in work. The Committee requests the Government to indicate the manner in which it intends to accord special attention to the situation of girls and remove them from the worst forms of child labour in the context of ILO programmes or the "National Plan for the prevention and elimination of child labour and the protection of young workers (2001-2004)".

Paragraph 3. Competent authority responsible for the implementation of the provisions giving effect to the Convention. The Government indicates that the National Commission for the Elimination of Child Labour, established by Government Agreement No. 347-2002, is one of the institutions which monitors the application of the provisions giving effect to the Convention. The National Commission is composed, among others, of the Ministry of Education, the Ministry of Public Health, the Ministry of Agriculture, Stock-raising and Food, the Ministry of Culture and Sports, the Secretariat of Social Assistance, a representative of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and a representative of trade union federations. The National Commission is responsible, among other matters, for the implementation of the "National Plan for the prevention and elimination of child labour and the protection of young workers (2001-04)". The Committee requests the Government to provide information on the activities of the National Commission for the Elimination of Child Labour and to indicate whether it has established appropriate mechanisms to monitor the implementation of the provisions giving effect to the Convention.

Article 8. Enhanced international cooperation and/or assistance. The Committee notes that Guatemala is a member of Interpol, the organization which assists in cooperation between countries in the various regions, particularly to combat the trafficking of children. The Committee notes the information provided by the Government in its second periodic report submitted to the Committee on the Rights of the Child in March 2000 (CRC/C/65/Add.10, paragraphs 10 and 238), according to which a high number of children of both sexes are obliged to work owing to the poverty and extreme poverty suffered by the vast majority of families. The Government also indicated that the poverty and extreme poverty in which thousands of families live, in combination with other social and political factors, have had an adverse impact on children’s quality of life and led to an increase in the number of children and young persons who are particularly vulnerable, such as those working in the formal and informal economies, those involved in marginal income-generating work, street children and the child victims of armed conflict. In its concluding observations on the second periodic report of Guatemala in July 2001 (CRC/C/15/Add.154, paragraph 15), the Committee on the Rights of the Child encouraged the Government to strengthen its efforts to reduce poverty among children and to identify clearly its priorities with respect to child rights issues in order to ensure that funds are allocated "to the maximum extent of [...] available resources and, where needed, within the framework of international cooperation" for the full implementation of the economic, social and cultural rights of children, in particular with respect to local governments and for children belonging to the most vulnerable groups in society. The Committee on the Rights of the Child further recommended the Government to identify the amount and proportion of the budget spent on children at the national and local levels in order to evaluate the impact and effect of expenditures on children. The Government was also encouraged to seek international cooperation and technical assistance in this regard. The Committee of Experts requests the Government to provide information on the measures adopted or envisaged in this respect. The Committee also encourages the Government to cooperate with other countries and requests it to provide detailed information on enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes that, according to the report entitled "Understanding child labour in Guatemala", published in September 2003 by ILO/IPEC, a large number of children work in activities such as domestic work, agriculture, the production of fireworks, mining and quarries and rubbish collection. The Committee notes that the statistics and data contained in this report do not specifically cover the worst forms of child labour. It notes that, according to the document "Hazardous work by children and young persons: Identification, location and definition - The worst forms of child labour in Guatemala", a study on the worst forms of child labour should be carried out so as to establish an overview of these types of work and to identify the socio-economic context, cultural attitudes and the causes of the existence of the worst forms of child labour. This study would provide a basis for establishing fields of intervention and programmes of action. On the basis of this study, the Committee requests the Government to provide information on the nature, extent and trends of the worst forms of child labour, statistics on the number of children covered by the measures giving effect to the Convention and on the number and nature of infringements, investigations, prosecutions, convictions and the penal sanctions applied. To the extent possible, all information provided should be disaggregated by sex.