Rapport définitif - Rapport No. 389, Juin 2019

1. 388. The complaint is contained in two communications dated 11 April 2016 and 6 February 2018 from the Indigenous and Agricultural Workers’ Trade Union Movement of Guatemala (MSICG).
2. 389. The Government sent its observations in communications dated 17 July 2017, 15 November 2018 and 1 May 2019.
3. 390. 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. 391. In its communications dated 11 April 2016 and 6 February 2018, the MSICG alleges that various aspects of Decree No. 18-2016, through which the Government passed a series of reforms to the Organic Law governing the Public Prosecutor’s Office (Decree No. 40-94), violate the principles of freedom of association and collective bargaining and the corresponding ILO Conventions that Guatemala has ratified. The complainant reports, firstly, that although the establishment of the Special Investigation Unit for Crimes against Trade Unionists has been the subject of repeated communications from the Government to the ILO, in practice the requisite trained staff has not been assigned to the Unit, nor has it been provided with the infrastructure and the conditions necessary for it to become operational. Furthermore, the complainant indicates that by reforming article 30 of the Organic Law governing the Public Prosecutor’s Office, article 18 of Decree No. 18-2016 establishes the organization of the Public Prosecutor’s Office and sets up 22 divisional prosecutor’s offices, but does not include an office for crimes against trade unionists, which in its opinion presupposes that the current deficiencies and weaknesses of the Special Investigation Unit for Crimes against Trade Unionists are a consequence of the State’s lack of will, as the aforementioned reform provided the ideal opportunity to set up a prosecutor’s office specialized in crimes against trade unionists.
2. 392. In addition, the complainant alleges that the reform is incompatible with freedom of association and disproportionately affects trade union organizations, their leaders and members, as it represents a return to a situation where public authorities lack genuine counterweight mechanisms to curb or impede arbitrary actions by them, and that some of the provisions under the reform are discriminatory towards trade union leaders.
3. 393. The complainant alleges that, by dismantling the Council of the Public Prosecutor’s Office, the reforms of the Organic Law governing the Public Prosecutor’s Office implemented by means of Decree No. 18-2016 have granted the Public Prosecutor wide-ranging decision-making powers, and explains that prior to its dismantling, the Council of the Public Prosecutor’s Office acted as a collegiate body charged with: (i) upholding, amending or setting aside the directives issued by the Public Prosecutor when they were contested in accordance with the proceedings under the Organic Law and other directives established in accordance with the disciplinary rules and the rules on transfers and substitutions (articles 18, 68 and 72 of Decree No. 40-94); (ii) accepting or rejecting the Public Prosecutor’s proposals on the operational and territorial structure of the Public Prosecutor’s Office (article 18 of Decree No. 40-94); (iii) proposing district and divisional prosecutor’s offices, prosecutors and assistant prosecutors in accordance with the career path of the Public Prosecutor’s Office (article 18 of Decree No. 40-94); and (iv) hearing appeals against disciplinary action taken and sanctions issued against members of the Public Prosecutor’s Office, impeding the Public Prosecutor’s discretion concerning the aforementioned sanctions and career path (articles 53, 63 and 64 of Decree No. 40-94).
4. 394. Furthermore, the complainant indicates that before the reform was passed, if the Public Prosecutor’s Office wanted access to sensitive information or to intervene in any way in the private sphere of a person, the institution had to seek the authorization of a judge competent to determine whether there was evidence indicating that such interference was reasonable. However, article 1 of Decree No. 18-2016, which reforms article 6 of the Organic Law governing the Public Prosecutor’s Office, places an obligation on any public official and administrative authority of the State and its decentralized entities to cooperate with the Public Prosecutor’s Office and provide the documents required by it, thereby eliminating any test of reasonableness, and emphasizes that a lack of cooperation may even result in criminal proceedings being brought by the Public Prosecutor’s Office.
5. 395. Consequently, the complainant considers that the reform constitutes a serious deterioration in terms of human rights, as granting the Public Prosecutor wide-ranging decision-making powers and eliminating the test of reasonableness constitutes a risk for those organizations which, at a given time, may have interests that differ from those of the Government and the Public Prosecutor’s Office, which have been characterized by repressive conduct against their workers’ freedom of association. Furthermore, it considers that these conditions help the Public Prosecutor to monitor the activities of trade unions, the use of its resources and even the communications between its leaders and members, given that such interference does not require criminal investigation proceedings to be initiated, as the Public Prosecutor’s Office functions as the monitoring and oversight body for its own actions.
6. 396. Furthermore, the complainant reports that article 52 of Decree No. 18-2016, which reforms article 77(b)(2) of the Organic Law governing the Public Prosecutor’s Office, has provisions concerning the incompatibility between the functions of a member of the Public Prosecutor’s Office and those of a trade union leader or adviser, thereby restricting in a discriminatory manner any person performing those duties from accessing the career path of the Public Prosecutor’s Office. According to the complainant, the career path of the Public Prosecutor’s Office comprises prosecutorial posts, and technician, administrator and operator posts; it also regulates access to employment and promotion prospects, and therefore in practice that provision implies that any trade union leader or adviser would lose their job or forfeit opportunities for promotion in the Public Prosecutor’s Office.
7. 397. The complainant indicates that, on account of the issuance of the decree, the Union of Workers of the Criminal Investigation Directorate of the Public Prosecutor’s Office (SITRADICMP), an organization affiliated with the complainant organization, lodged a challenge before the Constitutional Court against Decree No. 18-2016 on the grounds of overall total unconstitutionality, which was dismissed on 10 January 2018. In relation to that decision, the complainant alleges that: (i) the judge that handed down the decision had a close relationship to the areas of Government; (ii) the Constitutional Court repeatedly declines to rule on the merits of cases in which there are clear violations of the Constitution; (iii) the higher courts repeatedly use a mechanism to undermine the legitimacy of trade union complaints, relying on the always subjective argument that the union failed to comply with the obligation to explain the unconstitutional flaws alleged; and (iv) in the said challenge of unconstitutionality, the trade union provided in a reasoned and substantiated manner the grounds on which the impugned provisions contravened the provisions of the Constitution and the principles of freedom of association and collective bargaining; nevertheless, the Court dismissed the trade union’s demands on the grounds that it had not complied with the obligation to explain the unconstitutional flaws.
8. 398. Lastly, the complainant alleges that the aforementioned decree revokes certain provisions of the collective agreement on working conditions in force, which was signed by the Public Prosecutor’s Office and the Union of Workers of the Public Prosecutor’s Office, thereby violating the right to free and voluntary collective bargaining. In this respect, the complainant states, firstly, that the decree removes the possibility for workers to appeal to the Council of the Public Prosecutor’s Office against cases of dismissal, transfer and suspension imposed by the Public Prosecutor, that is, to an authority other than the one which imposed the sanction. It alleges that it is therefore contrary to article 12 of the collective agreement, which establishes that the rights currently recognized under the law or the collective agreement are minimum guarantees and cannot be diminished on any grounds, and to article 70 of the same agreement, which provides that decisions of the Public Prosecutor on disciplinary sanctions and transfers may be appealed before the Council of the Public Prosecutor’s Office. Similarly, by establishing a penalty for very serious misconduct of an unpaid suspension from work of between twenty-one and ninety days, article 34(c) of Decree No. 18-2016 provides for a much harsher sanction than the maximum of fifteen days under the Organic Law governing the Public Prosecutor’s Office; accordingly, because the reform is regressive, not only does it revoke article 12 of the aforementioned collective agreement, it also contravenes the Protection of Wages Convention, 1949 (No. 95). Additionally, the complainant alleges that, by establishing time limits for bringing disciplinary action of six months for minor misconduct, one year for serious misconduct and two years for very serious misconduct and a time limit of five years for imposing the disciplinary sanction, article 32 of the decree has clearly modified the time limits under articles 64 and 65 of the collective agreement on working conditions, which provided that the time limit for the employer’s right to sanction a worker for misconduct was twenty days and restricted the time limit for imposing the disciplinary sanction to a maximum of eighteen months. Lastly, the complainant alleges that, by establishing that the imposition of a sanction for serious misconduct or for three instances of minor misconduct prevents the worker from being promoted and imposes a temporary restriction on opting for fellowships or other duties within the institution for as long as the note remains on the sanctioned worker’s file, article 34 of the aforementioned decree revokes article 65 of the collective agreement on working conditions, under which the consequences of a disciplinary sanction may not exceed the sanction itself and consequently do not entail the loss of the rights accorded by the collective agreement.

B. The Government’s reply

1. 399. In its communications of 17 July 2017 and 15 November 2018, the Government communicates its observations on the present case. The Government indicates that the Special Investigation Unit for Crimes against Trade Unionists, which is attached to the Human Rights Prosecution Service, was established in 2011 for the purposes of conducting specialized investigations into crimes against trade union organizations. Moreover, it indicates that, although the Unit initially comprised five persons, it currently comprises 19 persons, distributed over three agencies, one of which deals with violent deaths of trade unionists, while the others deal with disobedience offences. Additionally, the Government indicates that in 2015 the Public Prosecutor adopted General Directive No. 1-2015 on the investigation and effective prosecution of crimes committed against union leaders and members, workers and other defenders of labour and trade union rights, with a view to providing the staff with training on general guidelines and criteria for criminal prosecutions of crimes committed against trade unionists.
2. 400. Furthermore, the Government states that the Committee should decline to examine the complaint because: (i) the complaint does not demonstrate the existence of restrictions on the right to organize, alleged interference in the functioning of the organization or the prohibition of or excessive restrictions on the right to strike; (ii) the Committee has previously considered that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions, which does not apply in this case; (iii) the Committee is not competent to examine allegations concerning general working conditions, social security or layoffs in general; (iv) the aforementioned reform of the Organic Law governing the Public Prosecutor’s Office took into account the provisions of the Constitution of Guatemala, the principles of labour law, the rules and regulations in force in the institution and the collective agreement on working conditions signed by the Public Prosecutor’s Office and the Union of Workers of the Public Prosecutor’s Office; and (v) in the present case, the aforementioned Decree No. 18-2016 concerns the institutional strengthening of the Public Prosecutor’s Office and is wholly unrelated to trade union matters, as there is no causal nexus to determine that acts undermining freedom of association and the right to organize were committed.
3. 401. In its communication of 1 May 2019, the Government transmits the information from the Public Prosecutor’s Office of Guatemala. In relation to the purported failure to assign sufficient resources and staff for the proper functioning of the Special Investigation Unit for Crimes against Trade Unionists, the Government indicates that, since 2011, the year in which the specialized unit was established, there has been a five-fold increase in the budget for strengthening human resources, and furniture and equipment for the Unit, which increased from 868,216.96 quetzals in 2011 to 1,929,491.10 quetzals in 2014, 2,101,065.42 quetzals in 2016 and 4,178,537.85 quetzals in 2017 (equivalent to a total of US$ 545,821.51 in 2017).
4. 402. In relation to the reform of the Organic Law governing the Public Prosecutor’s Office, the Government states that: (i) the reform brings significant changes in various institutional areas with a view to strengthening the Public Prosecutor’s Office and increasing the level of professionalism of human resources; (ii) it is particularly important to unify the rules and regulations of the disciplinary regime, which were disseminated in various provisions, including in the collective agreements that have been signed by the Public Prosecutor’s Office and its trade union since the establishment of the institution; (iii) pursuant to article 60 of the Organic Law governing the Public Prosecutor’s Office, the disciplinary system of the professional careers of the institution is governed in accordance with the principles of legality, non bis in idem, independence of disciplinary proceedings, the right of defence and proportionality; (iv) the reform allowed three different disciplinary systems to be established, governing misconduct committed by prosecutorial staff and administrative, technical and support staff; for prosecutorial staff, the Disciplinary Board is the competent body to impose sanctions for misconduct; (v) the reform allowed the introduction of appropriate grounds for the Public Prosecutor’s removal from office, an aspect which had not been properly regulated and had given rise to a legal vacuum; and (vi) concerning the purported concentration of powers in the Public Prosecutor’s Office, its functions are conducted in compliance with the powers vested in it under the Constitution, laws, including the Organic Law governing the Public Prosecutor’s Office, and international conventions and treaties.
5. 403. As to the purported incompatibility brought about by article 52 of Decree No. 18-2016, the Government makes reference to Case No. 4134-2016 of the Constitutional Court, which dismissed the challenge on the grounds of total unconstitutionality against Decree No. 18 2016 brought by SITRADICMP. The Government indicates that in its decision, the Constitutional Court found that the plaintiffs “merely indicated that Decree No. 18-2016 of the Congress of the Republic of Guatemala, which contains the reforms to the Organic Law governing the Public Prosecutor’s Office, Decree No. 40-94 of that body, violated articles 1, 2, 3, 4, 5, 12, 17, 22, 24, 30, 44, 46, 102, 103, 106, 113, 140, 141, 152, 153, 154, 175, 202, 211 and 251 of the Political Constitution of the Republic of Guatemala” and that “the Constitutional Court cannot subrogate the will of the plaintiff”. Consequently, the Government considers that: (i) it was the omission on the part of the plaintiffs that resulted in the Constitutional Court not examining the merits of the arguments, as merely citing the constitutional provisions is no substitute for setting out the reasoning which would enable the alleged constitutional violation to be determined; and (ii) by omitting to set out a legal reasoning comparing the constitutional provisions that were considered to have been violated and the provisions of ordinary law being challenged, the plaintiffs’ arguments were considered by the Court to be insufficient and lacking a reasoned legal foundation, as they merely described and set out subjectively what in their view was detrimental to their interests by raising a series of situations, some of which real, others hypothetical, which apparently provided the basis for the proclaimed flaws.

C. The Committee’s conclusions

1. 404. The Committee observes that in the present case the complainant alleges that various aspects of Decree No. 18-2016, which modified the Organic Law governing the Public Prosecutor’s Office, violate the principles of freedom of association and collective bargaining and the corresponding ILO Conventions ratified by Guatemala. The Committee notes that the complainant’s allegations concern in particular: (i) the failure to assign sufficient resources and staff to the Special Investigation Unit for Crimes against Trade Unionists; (ii) the dismantling of the Council of the Public Prosecutor’s Office and the corresponding broadening of the powers of the Public Prosecutor for disciplinary matters; (iii) the broadening of the powers of the Public Prosecutor’s Office, which no longer has to seek the authorization of a judge before conducting certain investigations; (iv) the creation of an incompatibility between the functions of a member of the Public Prosecutor’s Office and those of a trade union leader or adviser; and (v) non-compliance with various clauses of the collective agreement on working conditions in the institution.
2. 405. The Committee notes that the Government considers that the complaint presented by the complainant should not be examined, as the aforementioned decree, which was adopted with a view to strengthening the institution of the Public Prosecutor’s Office, is wholly unrelated to trade union matters and does not contain violations of the right to organize or collective bargaining, as it was drafted in accordance with the national and international legislation in force and with the collective agreement on working conditions signed by the Public Prosecutor’s Office and the Union of the Public Prosecutor’s Office. It also notes the Government’s indications that the challenge on the grounds of overall total unconstitutionality of Decree No. 18-2016 lodged by a union affiliated to the complainant federation before the Constitutional Court was dismissed because the Court considered the plaintiffs’ proposals to be insufficient and lacking legal reasoning in support of their argument, as the plaintiffs had merely described and set out subjectively what in their view was detrimental to their interests.
3. 406. As to the Government’s unwillingness to assign sufficient resources and staff to the Special Investigation Unit for Crimes against Trade Unionists, the Committee recalls that this matter is being examined as part of Case No. 2609 and that it has already made recommendations in this respect [see in particular, 387th Report, November 2018, paragraph 414]; consequently, the Committee will pursue its examination of this matter as part of that case.
4. 407. As to the dismantling of the Council of the Public Prosecutor’s Office and the corresponding broadening of the powers of the Public Prosecutor concerning disciplinary matters, the Committee notes the complainant’s allegations indicating that:(i) the Council of the Public Prosecutor’s Office was the body charged with upholding, amending or setting aside the directives issued by the Public Prosecutor on disciplinary matters and hearing appeals against disciplinary action taken and sanctions issued against members of the Public Prosecutor’s Office; (ii) by removing the Council from the organizational structure, the reforms of the Organic Law governing the Public Prosecutor’s Office eliminated any genuine counterweight mechanisms to curb or impede arbitrary actions by the Public Prosecutor in disciplinary matters; and (iii) the reform particularly affected trade unions and their leaders and members, as the possibility of challenging disciplinary sanctions before a separate authority was abolished. In turn, the Government considers that: (i) the complainant’s allegations do not establish a causal nexus to determine that acts undermining freedom of association or the right to organize were committed; (ii) the reform enabled the rules and regulations of the disciplinary regime that had been disseminated in various regulatory sources, including the institution’s collective agreements, to be unified; (iii) three different disciplinary systems were established; and (iv) pursuant to article 60 of the Organic Law governing the Public Prosecutor’s Office, the disciplinary system of the professional career path of the Public Prosecutor’s Office is governed in accordance with the principles of legality, non bis in idem, independence of disciplinary proceedings, the right of defence and proportionality. The Committee observes that the complainant’s allegations merely indicate that the broader powers of the Public Prosecutor might constitute a potential risk for trade union organizations, but do not contain sufficient specific allegations to demonstrate the anti-union nature and effects of the said provisions. Consequently, the Committee will not pursue its examination of this allegation.
5. 408. As to the purported broadening of the powers of the Public Prosecutor’s Office, which no longer has to seek the authorization of a judge before conducting certain investigations, the Committee notes that according to the complainant: (i) prior to the reform, if the Public Prosecutor’s Office wished to intervene in any way in the private sphere of a person, it had to seek the authorization of a judge competent to determine whether there was evidence indicating that such interference was reasonable; (ii) article 1 of Decree No. 18-2016 eliminates any test of rationality and places an obligation on any public official and administrative authority of the State and its decentralized entities to cooperate with the Public Prosecutor’s Office and provide the documents required by it; and (iii) by eliminating any test of rationality, the Public Prosecutor’s Office or the Government can easily interfere in the management of trade unions and the private spheres of its members, and the complainant emphasizes that those institutions have been characterized by repressive conduct against their workers’ freedom of association. The Committee also notes the observations of the Government indicating that: (i) Decree No. 18-2016 concerns the institutional strengthening of the Public Prosecutor’s Office and is wholly unrelated to trade union matters; and (ii) the functions of the Public Prosecutor’s Office are conducted in compliance with the powers vested in it under the Constitution, laws, including the Organic Law governing the Public Prosecutor’s Office, and international conventions and treaties. Underscoring the fact that the Committee is not competent to rule on the division of competences between the Public Prosecutor’s Office and the courts and that the complainant does not provide specific evidence to demonstrate the anti-union nature or effects of the broadening of the powers of the Public Prosecutor’s Office, the Committee will not pursue its examination of this allegation.
6. 409. As to the allegedly anti-union nature of article 52 of Decree No. 18-2016, the Committee observes that it amends article 77 of the Organic Law governing the Public Prosecutor’s Office in the following manner:
   • Article 77. Incapacity or incompatibility.
   • …
   • (b) The following shall be incompatible with the functions of a member of the Public Prosecutor’s Office:
     • (1) Holding any office elected by popular vote or standing for election to such office.
     • (2) Holding any other remunerated public or private employment or functions, or any other employment, leadership or advisory role in political institutions, trade unions or entities which receive, administer or use public resources or property of the State or which form part of the State administration outside the Public Prosecutor’s Office, or other entities with political aims, or being a minister of any religion or faith ….
7. In this respect, the Committee notes that, according to the complainant’s allegations: (i) this article provides as grounds for incompatibility with the functions of a member of the Public Prosecutor’s Office the holding of a leadership or advisory role in a trade union, so that in practice, this would entail the loss of employment or forfeiting opportunities for promotion within the institution for those persons contemplated by the article; (ii) a trade union affiliated with the complainant brought a challenge on the grounds of overall total unconstitutionality against Decree No. 18-2016 before the Constitutional Court, which was dismissed on 10 January 2018; and (iii) the judge responsible for ruling on the case dismissed it on the grounds of purported flaws in its form, without ruling on the merits. The Committee observes that although the Government refers to the decision of the Constitutional Court dismissing the challenge of total unconstitutionality of Decree No. 18 2016, the Court did not rule on the alleged anti-union nature of article 52 of the decree. Furthermore, the Committee observes that it is apparent from the decision of 10 January 2018 that the Constitutional Court made no finding on the merits, and that consequently it did not examine the potential impact of the decree on freedom of association. The Committee notes that article 52 of Decree No. 18-2016 explicitly establishes an incompatibility between the functions of “a member of the Public Prosecutor’s Office” and “leadership or advisory roles in … trade unions … outside the Public Prosecutor’s Office” – an incompatibility that was not contemplated in the previous legislation. While observing that the exact personal and material scope of the aforementioned incompatibility is not precisely defined by article 52 of Decree No. 18-2016 and that the Government has not provided clarifications in that regard, the Committee recalls that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Compilation, op. cit., para. 1074]. In the light of the foregoing, and highlighting the existence of the National Tripartite Committee on Labor Relations and Freedom of Association created in 2018, the Committee requests the Government to submit to tripartite debate the exact scope of article 77 of the Organic Law governing the Public Prosecutor’s Office as amended by article 52 of Decree No. 18-2016 in order to guarantee its full conformity with the principles of freedom of association, ensuring, in particular, the right of members of the Public Prosecutor’s Office to organize as well as to participate in trade union activities, both through their primary organization and the federation or confederation to which their union may be affiliated.
8. 410. Lastly, as to the allegations concerning the purported revocation by Decree No. 18-2016 of certain provisions of the collective agreement on working conditions that is in force, the Committee notes that the complainant states that safeguards established by the collective agreement in relation to the disciplinary regime are affected, particularly with regard to: (i) the time limits for initiating disciplinary action and imposing sanctions; and (ii) the effects of the sanctions on workers’ acquired rights. The Government indicates that the reform enabled the provisions concerning the disciplinary regime that had been disseminated in various regulatory sources, including in the collective agreements on working conditions signed by the institution, to be unified and that Decree No. 18-2016 took account of the content of those collective agreements. The Committee also observes that in its reply, the Government does not refer to the detailed allegations of violations of specific clauses of the collective agreement that are contained in the complaint. Recalling that agreements should be binding on both parties and that the public authorities should promote free collective bargaining and not prevent the application of freely concluded collective agreements, particularly when these authorities are acting as employers or have assumed responsibility for the application of agreements by countersigning them [see Compilation, op. cit., paras 1334 and 1480], the Committee trusts that, in the context of the application of Decree No. 18-2016, the Public Prosecutor’s Office will comply in law and in practice with the institution’s collective agreement.