Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 396, Octubre 2021

1. 349. The complaint was presented in communications dated 16, 18 and 19 June 2015, 24 July 2015, 9 November 2015, 1 and 5 May 2016, 5 January 2017, 12 and 14 February 2017, and 1 and 5 May 2018, by the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG).
2. 350. The Government sent its observations in communications dated 18 January 2016, 25 April, 6 May, 26 September 2019, and 3 January 2020, 21 July 2021 and 29 September 2021.
3. 351. 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. The complainant’s allegations

1. 352. In its communications dated 18 June and 24 July 2015, 5 March 2016 and 5 January 2017, the complainant organization states that, in light of the clear lack of political will of the Human Rights Ombudsman to directly negotiate a collective agreement on working conditions, on 20 November 2014, socio-economic collective dispute No. 01173-2014-07016 was presented before the courts by its member organization, the Union of Workers at the Office of the Human Rights Ombudsman (SITRAPDH). The complainant organization alleges that, in the context of this collective dispute, a whole series of acts of violence was initiated against SITRAPDH, its members and trade union leaders, by the Human Rights Ombudsman, Mr Jorge Eduardo de León Duque, his Deputy Ombudsman, and another official from the Office of the Human Rights Ombudsman, which led to acts of criminalization, stigmatization and harassment. It alleges that the Human Rights Ombudsman continued to act against the complainant organization, denying it the right to carry out trade union activities and represent trade union organizations.
2. 353. In its communication of 19 June 2015, the complainant organization alleges that death threats were made against three trade union leaders by their employers’ organizations: the leader of the complainant organization, Mr Efrén Sandoval, and the leaders of two of its members: Public Relations Secretary at the Trade Union of Gas Bottling, Transport, Distribution and Maintenance Workers (SINTETDM.GAS), Mr Augusto Zicinio Morales, and the Secretary-General of the Unite for Change National Union of Autonomous Sports Confederation Workers (SNUCTCDAG), Ms María Lizette Alburez Guevara de Santandrea, in August 2014, and in March and April 2015, respectively. The complainant organization indicates that, although complaints were filed with the Office of the Public Prosecutor, the facts have not been clarified.
3. 354. In its communication of 24 July 2015, the complainant organization alleges that Ms Lesbia Amézquita, a lawyer from SITRAPDH, was followed by two masked men on motorcycles with the possible intention of shooting her, and indicates that SITRAPDH filed a complaint with the Office of the Public Prosecutor in order for the facts to be investigated. It alleges that a prosecutor from the unit investigating crimes against trade unionists informed the employers’ organization that a complaint had been filed against it, revealing that the persons who had signed the complaint were trade union leaders, Ms Marilyn Roxana Girón Palacios and Ms Glenda Azucena Escobar. The two trade union leaders were later informed of a disciplinary procedure with the aim of dismissing them, on the grounds that they had attended a workplace at the request of their members.
4. 355. In its communications of 9 November 2015 and 1 May 2016, the complainant organization indicates that, by means of first and second instance rulings, the Combined Pluripersonal Court of First Instance for Labour and Social and Economic Welfare of the Department of Quetzaltenango (rulings of 27 February 2015) and the Court of Appeals for Labour and Social Welfare (rulings of 21 July 2015) ordered the reinstatement of the workers dismissed for having participated in the formation of SITRAPDH. It alleges that, on several occasions, the Office of the Human Rights Ombudsman refused to comply with the aforementioned final court rulings on the reinstatement of the dismissed workers. It also alleges that the acts of anti-union harassment by the Office of the Human Rights Ombudsman have influenced other civil society stakeholders and, in particular, have led many NGOs to take a stand against the MSICG.
5. 356. In its communication of 12 February 2017, the complainant organization alleges that SITRAPDH filed a complaint against the Office of the Human Rights Ombudsman. It indicates that the complaint was referred to the unit investigating crimes against trade unionists, and then to the unit investigating crimes against human rights activists. However, it maintains that no file has been processed, which constitutes a violation of due process and alleged collusion between the Human Rights Ombudsman and the Attorney-General. On 6 January 2017, the criminal judge dismissed the proceedings, a decision against which the trade union filed an appeal for amparo (protection of constitutional rights). In a communication dated 1 February 2018, the complainant organization reiterates that, on several occasions, it reported to the Office of the Public Prosecutor that, for over seven years, the prosecutor had retained dozes of cases in his possession, without completing the relevant investigations, in order to guarantee impunity concerning the offences committed against the members of the complainant organization.
6. 357. In its communication of 14 February 2017, the complainant organization alleges that other acts of intimidation and anti-union dismissals were carried out against SINTETDM.GAS. It indicates, in particular, that, despite the fact that legal decisions issued by the Sixth Pluripersonal Court of First Instance for Labour and Social Welfare ordered the reinstatement of five trade union leaders, the employers’ organization refused to pay the wages and other benefits that had not been received in the period between the dismissal of the trade union leaders and their actual reinstatement. The complainant organization alleges that the employers’ organization often increases the number of procedures to delay the payment of entitlements, and that there have been new cases of anti-union dismissals and new acts of violence.
7. 358. In its communication of 5 January 2017, the complainant organization alleges that the Government and the employer sector, through a nationwide press campaign, have stigmatized and criminalized freedom of association and collective bargaining, and have stigmatized the lawyers responsible for defending, before the courts, workers who exercise their rights to freedom of association and collective bargaining.
8. 359. The complainant organization alleges that the attack in the media took place after the aforementioned acts of retaliation and violence, as a result of the issue of collective bargaining being raised before the labour courts by SITRAPDH. It indicates that this situation began with a press release in which the complainant organization was used to attack the Office of the Human Rights Ombudsman for its investigations of the deaths of renal patients from the Guatemalan Institute of Social Security (IGSS) and the enterprise, PISA. It underscores that this is not the first time that “dubious characters” have used the complainant organization to destabilize national institutions, which has led to the discredit of its leaders and defenders.
9. 360. The complainant organization alleges that, on 26 May 2015, the social media outlet La Hora published a press release in which Ms López David announced that the negotiation of a new collective agreement with workers had been stalled due to “interference, manipulation, distortion and blackmail” by the MSICG.
10. 361. The complainant organization also alleges that, on 5 June 2015, the Human Rights Ombudsman convened an institutional press conference, during which statements were made against it. These statements implied that the MSICG was a criminal organization, with the aim of discouraging trade union membership and collective bargaining, and criminalized Ms Amézquita in an abusive manner, by insinuating that she had appropriated 29 million quetzals (GTQ), which jeopardized her safety. According to the complainant organization, these statements were published in June 2015 by the daily newspaper Prensa Libre (hereinafter “the daily newspaper”), which is the most widely circulated national newspaper.
11. 362. The complainant organization underscores that the media campaign created high levels of public disgust at and hatred towards trade unionism, and even served as an argument, in some institutions, to prevent the formation of trade unions or weaken and destroy existing ones. It alleges that all these statements aimed to portray the complainant organization and its leaders as being part of criminal structures, as being dishonest trade union leaders, and as having political interests against the Human Rights Ombudsman, but above all, to coerce them into ceasing to defend the workers of the Office of the Human Rights Ombudsman.
12. 363. The complainant organization adds that, while the special unit investigating impunity attached to the International Commission against Impunity provided documentation that dissociated Ms Amézquita and Mr Sandoval from criminal structures in the IGSS-PISA case, they were denied the publication of their right to clarification, and therefore both individuals decided to appeal to judges of the peace, who declined to hear the case, claiming that a criminal proceeding must be initiated in order to gain access to the right to clarification. It indicates that, although the Constitutional Court rulings of 7 January and 4 February 2016 ordered the courts to rule in accordance with the law and to require the daily newspaper to publish the rights to reply and, in the case of Ms Amézquita, the Court of First Instance for Labour Appeals, these rulings were not followed up.
13. 364. In a communication dated 5 February 2018, the complainant organization alleges that, despite a Constitutional Court decision issued on 8 November 2017 in favour of Mr Sandoval, the daily newspaper has yet to publish the right to reply and to clarification. It highlights that the right to clarification of Ms Amézquita is still pending a decision by the Constitutional Court. The complainant organization alleges that, at the beginning of February 2018, it had been almost three years since the rights to reply of SITRAPDH, Ms Amézquita and Mr Sandoval should have been published by the daily newspaper. It also alleges that these rights are now ineffective as the impact of the acts of criminalization, stigmatization and violence brought about by the daily newspaper against the complainant organization, SITRAPDH and Ms Amézquita and Mr Sandoval has been integrated by the public and has caused the damage intended, with serious consequences for SITRAPDH, Ms Amézquita and Mr Sandoval and their families, the members of the complainant organization and its leaders, and the right to freedom of association and collective bargaining.
14. 365. The complainant organization further alleges that the publications promoted by the Government of Guatemala through the Office of the Human Rights Ombudsman are being used by the Government before the Court of Honour of the Guatemalan Bar Association as evidence to call for the disbarment of Ms Amézquita, which would leave workers defenceless before the country’s courts. Regarding the disbarment process, the complainant organization indicates that, at the beginning of 2018, the complaint filed had still not been resolved.

B. The Government’s reply

1. 366. In its communications of 18 January 2016 and 25 April 2019, the Government forwards the reply from the Office of the Human Rights Ombudsman, which indicates that it respects freedom of association, and that the Office of the Human Rights Ombudsman is not interfering and has not interfered in the formation and application for registration of SITRAPDH. It states that that the claim that the founding members of SITRAPDH were subject to acts of violence, threats, stigmatization, criminalization and dismissal, is false. It underscores that the persons who were dismissed were fully aware of the disciplinary procedures carried out against each one of them for misconduct, which were initiated before the date on which they indicated that they were joining the trade union.
2. 367. Concerning the reinstatements ordered by the competent judicial authorities, the Office of the Human Rights Ombudsman indicates that it reinstated the seven workers concerned on 18 January 2016. However, these persons did not agree and took a series of actions, which meant that they only returned to their posts on 22 July 2016. The Office of the Human Rights Ombudsman also states that the claim that it refused to comply with any court ruling is completely false. It explains that when it tried to proceed with reinstatement, on several occasions, it was unable to do so, as provisional amparo had been granted in favour of the Office of the Human Rights Ombudsman as part of the labour reinstatement proceedings brought before the Combined Pluripersonal Court of First Instance for Labour and Social and Economic Welfare of the Department of Quetzaltenango. In its communication of 29 September 2021, the Government confirms that the reinstatement of the dismissed workers for having participated in the formation of SITRAPDH was ordered by the rulings of 27 February 2015 of the Combined Pluripersonal Court of First Instance for Labour and Social and Economic Welfare of the Department of Quetzaltenango, which were confirmed on 21 July 2015 by the Court of Appeals for Labour and Social Welfare. The Government describes the different legal proceedings related to the dismissals, and confirms that the seven workers were reinstated on 22 July 2016. It also reports that on 21 March 2017, the Constitutional Court confirmed the decision of 21 July 2015 by the Court of Appeals for Labour and Social Welfare.
3. 368. Regarding its alleged refusal to negotiate a collective agreement on working conditions, the Office of the Human Rights Ombudsman states that it has always demonstrated full openness, good faith and willingness with regard to reaching agreements and improving working conditions and benefits for all workers in the institution, where budgetary possibilities so allow. It indicates that substantial agreements were reached during the negotiations, and the trade union representatives were the ones who decided to leave the table.
4. 369. As regards the alleged acts of violence by the Office of the Human Rights Ombudsman and other authorities, the Office of the Human Rights Ombudsman indicates that, although the complainant organization and Ms Amézquita appealed to the different instances of the judicial body, filing complaints concerning the alleged events, the reality is that, each and every one of the complaints were gradually dispelled, precisely because they lacked veracity and therefore, were perceptions of that organization alone, or were a flawed strategy to air labour issues in other judicial spheres. Concerning the actions by Ms Shaw Arrivillaga, it indicates that it has nothing to say, as this remains an internal matter for the trade union.
5. 370. In its communication of 6 May 2019, the Government provides information on the alleged misconduct of the prosecutor responsible for the cases against the trade unionists during the investigation of the allegations against the Office of the Human Rights Ombudsman. It indicates that a series of administrative complaints, which were filed with the Office of the Public Prosecutor by leaders and members of the complainant organization, and by Ms Amézquita, against the aforementioned prosecutor, were determined to be unjustified, as it was considered that there was no liability that would justify the existence of administrative misconduct. The Government also states that: (i) by means of a decision dated 22 July 2015, the Third Criminal Court of First Instance Responsible for Narcotics Offences and Crimes against the Environment ordered the appointment of a new prosecutor and/or investigation unit to address an action brought by Ms Amézquita; (ii) in view of the clearly hostile situation that had arisen, the aforementioned prosecutor requested that he be removed from the investigation of all of the files of the MSICG; (iii) by means of a decision dated 21 October 2015, the Office of the Public Prosecutor accepted the request, and all the cases in which Ms Amézquita or other members of the complainant organization were listed as an advisor, aggrieved party and/or defendant were transferred to the Investigation Unit of the Office of the Public Prosecutor for Human Rights.
6. 371. Concerning the alleged death threats and other offences, the Government, in its communications of 26 September 2019, 21 July 2021 and 29 September 2021, reports on the status of some of the complaints filed with the Office of the Public Prosecutor. It indicates that: (i) Case No. MP001-2015-22417, brought by Ms Amézquita regarding death threats and an attempted break-in at the premises of the complainant organization, is still being investigated; (ii) Case No. MP001-2012-93837, in which Ms Amézquita and Mr Sandoval claimed threats, was dismissed on 31 May 2018; (iii) Case No. MP001-201479599, in which Mr Sandoval alleged coercion and threats resulting from actions taken by the complainant organization, was dismissed on 26 October 2016; (iv) Case No. MP001-2015-30301, brought by Mr Morales regarding offences of coercion and threats, was dismissed on 7 February 2020; (v) Case No. MP001-2015-39511, brought by Ms Guevara de Santandrea regarding offences of coercion and threats, was dismissed on 20 June 2019; (vi) Case No. MP001-2014-49103, in which four members of the complainant organization, Mr Walter Astulfo Golcher Rivera, Mr Luis Alfredo Alvarado Estrada, Mr José Luis Alvarado García and Mr Emilio Rolando López, made allegations of coercion, was dismissed on 28 September 2018; and (vii) Case No. MP001-2015-57671, brought by Mr Sandoval regarding offences of failure to report was dismissed, rulings violating the Constitution, breach of public duty, falsification of facts and collusion.
7. 372. Concerning the claim that the daily newspaper has still not published the right to reply and clarification, the Government reports that Mr Sandoval submitted a petition to the Third Chamber of the Civil and Commercial Court of Appeals, requesting assistance with the enforcement of the ruling of 8 November 2017 delivered by the Constitutional Court. However, it was determined that the contested authority had already ruled in favour of Mr Sandoval by not hearing an appeal lodged by the daily newspaper. The Government also indicates that, as a result of his disagreement with the decision, Mr Sandoval filed an appeal with the Constitutional Court, which was dismissed on procedural grounds by a ruling handed down on 30 August 2018. In its communication of 29 September 2021, the Government also indicates that a decision of 16 March 2017 by the Sixth Judge of Civil Peace of the municipality and department of Guatemala, which set a deadline of five days for the publication of the right to reply and clarification of Ms Amézquita, was confirmed by the Second Civil Judge of First Instance of the department of Guatemala on 16 August 2017 and by the Constitutional Court on 22 May 2018.
8. 373. With regard to the disbarment of Ms Amézquita, a lawyer for the complainant organization, the Government indicates, in its communication of 3 January 2020, that Ms María Luisa Durán Marín filed the corresponding complaint, which is currently pending before the Guatemalan Bar Association. The Government reports that this complaint stems from a series of criminal offences involving false allegations, calumny, threats, defamation and violence against women. The complaint also alleges that Ms Amézquita, under the auspices of the complainant organization, habitually makes repeated and unfounded complaints and allegations to the ILO Committee on Freedom of Association, against the Government of Guatemala and its various institutions and public and civil servants which hinder the achievement of her lucrative objectives and petty personal interests. With respect to the above, the Government maintains that the Committee does not have the authority to interpret the scope of national legislation, and that the jurisdiction of the courts is a matter for national legislation.

The Committee’s recommendations

1. 383. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to ensure that all the necessary measures have been taken to ensure the safety of the leaders of the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), the Trade Union of Gas Bottling, Transport, Distribution and Maintenance Workers (SINTETDM.GAS), and the Unite for Change National Union of Autonomous Sports Confederation Workers (SNUCTCDAG), who are at risk, and that the necessary measures are taken to rapidly complete the investigation that is still under way concerning the alleged threats and attempted break-in at the premises of the complainant organization, initiated by Ms Amézquita. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to ensure that it has given full effect to the decision by the Constitutional Court on the publication of the right to clarification of Mr Sandoval and Ms Amézquita, respectively. The Committee requests the Government to keep it informed in this respect.
   • (c) While it recalls that trade union leaders cannot claim immunity under ordinary laws, the Committee requests the Government to ensure, within its competence, that the decision on the request for Ms Amézquita to be disbarred does not constitute retaliation for her trade union activities. The Committee requests the Government to keep it informed in this respect.
   • (d) The Committee requests the Government to ensure that full effect has been given to the court decisions handed down by the judicial body responsible for the dismissal of the leaders of SINTETDM.GAS.