Informe definitivo - Informe núm. 202, Junio 1980

1. 143. The Committee has examined this case twice before, at its May and November 1979 sessions. On each occasion it submitted an interim report to the Governing Body, which requested the Government to supply certain additional information.
2. 144. The Government has since sent a communication to the ILO dated 12 March 1960.
3. 145. Guatemala has ratified both 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

1. 146. The matters still outstanding concern the withdrawal by administrative authority of legal personality from three civil servants' organisations, the ATRG, the ANCEP and the AGAE, and the detention since 1978 of José Enrique Garcia Castellanos, an official of the union of the Guatemalan Social Security institute.
2. 147. As regards the withdrawal of legal personality from the organisations ATRG, ANCEP and AGAE, the Government explained earlier that these organisations were not trade unions, but associations of employees in the public sector governed by the provisions of the Constitution, the Civil Service Act and the Civil Code and not by those of the Labour Code. Their legal personality had accordingly been withdrawn under an administrative procedure and not a judicial procedure, the grounds for this action being the fact that these organisations had called a strike lasting several days throughout the public administration and the fact that they had direct links with subversive groups.
3. 148. No information was supplied with regard to the detention of Mr. José Enrique Garcia Castellanos.
4. 149. When the case was examined in November 1979 the Governing Body decided, on the Committee's recommendations:
   • (a) as regards the withdrawal of legal personality from the organisations ATRG, ANCEP and AGAE:
   • (i) to recall the principle set forth in Article 4 of Convention No. 87, ratified by Guatemala, that workers' organisations shall not be liable to be dissolved by administrative authority;
   • (ii) to request the Government to state whether there was an appeal to the judicial courts against decisions taken by administrative authority and, if so, whether such appeal had a suspensive effect on the decisions; and
   • (b) to request the Government to send its observations on the arrest of Pr. José Enrique Garcia Castellanos.

B. The Government's reply

1. 150. In its communication of 12 March 1980, the Government states with regard to the official of the union of the Guatemalan Social Security Institute, José Enrique Garcia Castellanos, that no charge has been officially filed, but that the national police, having carried out an inquiry of its own accord, has established that this person was not arrested by a member of the government police force. After consulting the lists of persons in custody the Government declares that this person is not in any place of detention.
2. 151. As concerns the withdrawal of legal personality from the organisations ATRG, ANCEP and AGAE, the Government states that under the terms of section 7 of the Administrative Disputes Act, administrative decisions may be revoked, modified or confirmed by the authority making them. They may also be appealed against with a view to their annulment or reversal. Such an appeal must be filed with the public administration authorities by the person or body corporate concerned within three days of being informed of the decision. The Government adds that in the present case the organisations concerned have not exercised their right to appeal.

C. The Committee's conclusions

1. 152. As it has done several times in the past with respect to the disappearance of trade union officials in Guatemala, the Committee cannot but deplore once again the climate of insecurity surrounding such disappearances when it is impossible even for light to be thrown on such infringements of human rights and freedom of association. The Committee further wishes to point out, as it has already done in similar cases, that such a climate inevitably represents a serious impediment to the exercise of trade union rights and that such situations call for strict measures on the part of the authorities in order to establish the facts, punish the culprits and restore the situation to normal, this being an essential prerequisite for the free exercise of trade union rights.
2. 153. As concerns the withdrawal of legal personality from the three civil servants' organisations, the Committee notes that the Government states that there is an administrative avenue of appeal against administrative decisions, but does not specify whether such appeal has a suspensive effect on the decisions concerned nor whether it allows for reconsideration of the substance of the matters at issue. The Committee accordingly wishes to point out, as it has done in a number of similar cases, that withdrawal of legal personality under such conditions does not ensure the right of defence which judicial procedure alone can guarantee, and that this measure is accordingly inconsistent with the principles of Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee would also like to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.