Rapport intérimaire - Rapport No. 407, Juin 2024

1. 223. The Committee has already examined the substance of this case on a number of occasions, which was presented for the first time in 2007. The Committee last examined the case at its March 2023 meeting and on that occasion it submitted an interim report to the Governing Body [see 401st Report, paras 447 to 479].
2. 224. The Government of Guatemala sent its observations in five communications dated 27 April, 7 and 12 September, and 21 December 2023, and 16 April 2024.
3. 225. 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. Previous examination of the case

1. 226. At its March 2023 meeting, the Committee made the following recommendations [see 401st Report, para. 479]:
   • (a) The Committee expresses once again its deep concern over the seriousness of this case, given the many instances of murder, attempted murder, assaults and death threats and the climate of impunity.
   • (b) The Committee once again urges the Government, with the active participation and monitoring by the National Tripartite Committee and its subcommittee on implementation of the road map, to continue to take and intensify all the necessary measures to ensure the effective investigation of all acts of violence against trade union leaders and members, with a view to identifying those responsible and punishing the perpetrators and instigators of such acts, taking the trade union activities of the victims fully into consideration in the investigations, in accordance with Directive No. 01-2015. In this connection, the Committee specifically urges the Government to: (i) ensure that the doubling of the budget allocated to the specialized unit in 2022 translates into a significant increase in the criminal investigation capacities of the Special Investigation Unit for Crimes against Trade Unionists, enabling the investigations of both the most recent cases of violence and those of older cases to be tackled appropriately; (ii) take the necessary measures to ensure the competent authorities devote the attention and resources required for the investigations into the 36 homicides reported by the National Tripartite Committee; (iii) provide information on the result of the Public Prosecutor’s Office’s appeal of the acquittal handed down in relation to the murder of Mr Tomás Francisco Ochoa Salazar; (iv) provide information about the investigations carried out by the Ministry of the Interior’s unit dealing with threats and attacks against human rights advocates that were related to acts of anti-union violence; (v) continue the ongoing dialogue with the judiciary to ensure, through all appropriate mechanisms, that cases of anti-union violence are promptly examined by the criminal courts, and facilitate the participation of trade union organizations in criminal proceedings relating to crimes affecting their members; and (vi) take all necessary measures to ensure the continued monitoring role of the National Tripartite Committee and its subcommittee on implementation of the road map, taking into account the actions requested by that body in December 2019. The Committee requests the Government to keep it informed in this respect.
   • (c) Expressing its deep concern at the murder of a member of the trade union movement in 2022 and at the threats received by, among others, the General Secretary of the CUSG, the Committee once again urges the Government to take the necessary measures to: (i) ensure the effective functioning and strengthening of the Ministry of the Interior’s trade union committees and the reactivation of its Special Investigation Unit for the analysis of attacks against human rights advocates; (ii) establish regular dialogue between senior officials from the Ministry of the Interior and the National Tripartite Committee and its subcommittee on implementation of the road map; (iii) strengthen and systematize coordination between the Ministry of the Interior and the Public Prosecutor’s Office in the granting and handling of security measures for members of the trade union movement; and (iv) provide the necessary funds to ensure that all necessary security measures, especially personal measures, are granted as soon as possible to members of the trade union movement who may be at risk, without them having to incur costs for the upkeep of the officers assigned to protect them. The Committee requests the Government to keep it informed in this respect.
   • (d) The Committee once again draws the special attention of the Governing Body to the extremely serious and urgent nature of this case.

B. The Government’s reply

1. 227. In five communications sent between 27 April 2023 and 16 April 2024, the Government responds to the Committee’s recommendations, providing in particular information and updates regarding investigations into the acts of anti-union violence reported in the present case and the protection of members of the trade union movement who may be at risk.
2. 228. In response to the deep concern expressed by the Committee over the seriousness of the case (recommendation (a)), the Government reports that it has allocated funds in a timely manner to address the overall security situation, in respect of both prevention and the state apparatus responsible for the administration of justice, which imposes heavy penalties for the commission of criminal and punishable offences. It reports that, according to data from the Public Prosecutor’s Office, 99 cases of homicide of trade union leaders and members were recorded, indicating that: (i) to date, 38 rulings have been handed down, of which 27 were guilty verdicts, 10 not guilty, and 1 a security and correction measure; (ii) of these rulings, 15 related to the perpetrator of the homicide, 3 to the instigator and 11 to both of these; (iii) 14 of the 99 victims mentioned were not members of the trade union movement; (iv) 48 cases have been shelved on the grounds that it was materially not possible to identify the perpetrators of the homicide, in accordance with section 327 of the Code of Criminal Procedure (although the possibility remains of reopening the cases); (v) arrest warrants have been issued in 7 cases; (vi) 8 cases are at the investigation stage; and (vii) proceedings are at an intermediate stage in 2 cases.
3. 229. With regard to the adoption and intensification of measures to ensure the effective investigation of acts of violence against trade union leaders and members (recommendation (b)), the Government indicates that the Public Prosecutor’s Office conducts an immediate, independent, exhaustive, effective and impartial investigation into any act or threat of violence reported, meticulously evaluating the trade union activity of the victims, among other matters, to support a strong and timely prosecution case with robust evidence. It also indicates that, while the Public Prosecutor’s Office only had 64 municipal prosecutor’s offices in 2017, it now has a presence in the country’s 340 municipalities. The Government indicates that since 2017 the Public Prosecutor’s Office has managed to reduce the time taken to investigate and obtain guilty verdicts in cases of homicides of trade union leaders and members to an average of one year and nine months.
4. 230. Regarding the Special Investigation Unit for Crimes against Judicial Officials and Trade Unionists, the Government indicates that between 2022 and 2024, its annual budget went from US$1,288,252 to $1,654,150, which allowed for better technology and a more skilled team. Since the Special Investigation Unit was established, its budget has multiplied by 15 and its staff has increased from 8 workers in 2011 to 23 workers in 2023. Consequently, investigations have been faster and more accurate, and there have been a greater number of guilty verdicts handed down in comparison to not guilty verdicts. In addition, the Government states that the commitment by the Public Prosecutor’s Office to investigate acts of anti-union violence is also demonstrated by the appointment, by the Section Prosecution Office, of a special prosecutor to investigate the murder of Ms Doris Lisseth Aldana Calderón, representative of the Women’s Committee of the Izabal Banana Workers’ Union (SITRABI), on 4 October 2023.
5. 231. With regard to the homicides reported by the National Tripartite Committee, the Government explains that 35, and not 36, cases were identified as having particular significance during the meeting of that Committee on 7 February 2020 (due to the homicide of Mr Marco Tulio Ramírez Portela being counted twice). The Government reports that among those cases there are: (i) 7 cases with guilty verdicts; (ii) 4 cases where the criminal proceedings have been dropped; (iii) 4 cases where arrest warrants have been issued; (iv) 18 cases that have been shelved in accordance with the above-mentioned section 327 of the Code of Criminal Procedure; and (v) 2 cases that are under investigation by the Special Prosecutor’s Office against Impunity.
6. 232. Regarding the result of the Public Prosecutor’s Office’s appeal of the acquittal handed down in relation to the murder of Mr Tomás Francisco Ochoa Salazar, Dispute Secretary of the SITRABREMEN trade union organization, the Government explains that the Public Prosecutor’s Office did not appeal the ruling, as the elements on the basis of which it could be appealed were the same as those that had initially been ruled out by the court, and it did not wish to risk altering the status of the previously obtained guilty verdict (25 years of prison without parole for the perpetrators identified) contained in the same judicial file against the perpetrators of the murder.
7. 233. With respect to the investigations carried out by the Ministry of the Interior’s unit dealing with threats and attacks against human rights advocates in respect of acts of anti-union violence, the Government states that, when a request for the adoption of security measures is received, it is determined in conjunction with the Public Prosecutor’s Office whether the case has been reported and what the status of the investigation into it is, as part of inter-institutional coordination on complaints received and related to threats against trade union leaders and members. The Government reports that, between 1 June 2022 and 15 January 2023, the Ministry of the Interior received 97 individual or collective risk analysis requests (58 of which were from the Public Prosecutor’s Office) and granted 128 perimeter protection measures, while two trade union leaders continue to receive personal security measures, the first since 2017 and the second since 2019. The Government reports that, of the 58 complaints received by the Public Prosecutor’s Office, 11 alleged threats (of which 8 were rejected and 3 are under investigation), 25 alleged acts of coercion and were rejected, and 2 referred to the offence of defamation and were rejected.
8. 234. With regard to continuing the ongoing dialogue with the judiciary to ensure that cases of anti-union violence are promptly examined by the criminal courts, and to facilitate the participation of trade union organizations in criminal proceedings relating to crimes affecting their members, the Government reports that the Public Prosecutor’s Office continues to invite trade union leaders and members to participate as adhering complainants in the proceedings mentioned, which offers a channel for their involvement and their requests.
9. 235. With regard to ensuring the continued role of the National Tripartite Committee and its subcommittee on implementation of the road map, the Government states that, between September 2022 and September 2023, four meetings of the subcommittee on implementation of the road map were held, in which issues related to the key indicators of the road map were addressed. It also reports that the Chief Public Prosecutor and the head of the Special Investigation Unit for Crimes against Judicial Officials and Trade Unionists participated in the meetings of the National Tripartite Committee held on 8 and 29 March 2023, and the Public Prosecutor’s Office and the workers’ sector agreed a working methodology for managing cases comprehensively. In its communication dated 15 April 2024, the Government also indicates that the Public Prosecutor’s Office is taking the necessary steps to establish the legal instrument or instruments to ensure the continuity of the Trade Union Technical Committee of the Public Prosecutor’s Office, which will be subject to consultation with the trade unions.
10. 236. Regarding recommendation (c), which refers to the protection of members of the trade union movement who may be at risk, the Government indicates that, since the beginning of 2023, the Public Prosecutor’s Office has promoted dialogue with workers’ representatives, and they have agreed to meet to address issues related to workers’ interests. It also reports that at the end of 2022 the Ministry of the Interior began a dialogue with workers’ representatives to update Ministerial Decision No. 288-2022 concerning the Special Investigation Unit for the analysis of attacks against trade union leaders and members, in order to address the needs of this sector with greater certainty and focus.
11. 237. With respect to establishing regular dialogue between senior officials from the Ministry of the Interior and the National Tripartite Committee and its subcommittee on implementation of the road map, the Government states that: (i) the Committee invites the Ministry of the Interior to a face-to-face meeting at least twice a year to report on the protection measures accorded to members of the trade union movement and on other actions to prevent and mitigate acts of anti-union violence; and (ii) in 2023, these meetings were held on 20 January and 8 March.
12. 238. Concerning the strengthening and systematization of coordination between the Ministry of the Interior and the Public Prosecutor’s Office in the granting and handling of security measures for members of the trade union movement, the Government explains that the staff of the Ministry of the Interior, the entity which is responsible for the National Civil Police, provides security measures to trade unionists, both perimeter and personal, in accordance with a risk analysis conducted within a week. It reports that these measures can be requested by the Office of the Public Prosecutor, the injured party, the Human Rights Procurator’s Office, and the Ministry of the Interior, and that in 2023, all the cases handled were at the request of the Office of the Public Prosecutor and ultimately all of them involved an investigation process.
13. 239. With respect to providing the necessary funds for the granting of all security measures required to members of the trade union movement who may be at risk, the Government reports that it has the financial resources and the staff to provide those measures quickly and efficiently. It states that, with an annual allocation of US$1,239,120, the Ministry of the Interior is responsible for logistical and planning aspects to ensure that security requirements are met. The Government indicates that trade union leaders and members are not required to pay for their protection, as security is a right. It also notes that there are six canteens in the capital to ensure that protected trade unionists do not pay for police officers’ meals.
14. 240. In its communication dated 15 April 2024, the Government stated finally that its commitment to international labour standards and to the legitimate concerns of the trade unions was demonstrated at the highest level during the third International Conference in support of Guatemala, held on 11 and 12 April 2024, in which the President of the Republic and other senior state officials participated. On that occasion the Government stated that the trade unions could not perform under normal conditions without the essential protections of a democratic State and that Guatemala was at a historic juncture for the strengthening of social dialogue.

C. The Committee’s conclusions

1. 241. The Committee recalls that, in the present case, the complainants denounce numerous murders and acts of violence against trade union leaders and members, as well as impunity in that regard.
2. 242. With regard to the adoption and intensification of measures to ensure the effective investigation of acts of violence against trade union leaders and members (recommendation (b)), the Committee takes due note of the information supplied by the Government in this respect. The Committee notes in particular that: (i) since 2017, the Public Prosecutor’s Office has gone from having 64 municipal prosecutor’s offices to having a presence in the country’s 340 municipalities; and (ii) the budget of the Special Investigation Unit for Crimes against Judicial Officials and Trade Unionists went from US$1,288,252 to $1,654,150 between 2022 and 2024, which translated into better technology and a more skilled team. The Committee also notes the Government’s indication that the Public Prosecutor’s Office: (i) continues to invite trade union leaders and members to participate as adhering complainants in criminal proceedings concerning offences that have affected their members; (ii) met with the National Tripartite Committee in March 2023; and (iii) indicates that it is taking the necessary measures to ensure the continued existence and operation of its Trade Union Technical Committee, which allows for the exchange of information and views with trade union organizations.
3. 243. The Committee goes on to note the updates provided by the Government with regard to the outcomes of the investigations of the homicide cases examined in the present case and the punishment of the perpetrators. The Committee notes that: (i) of a total of 99 homicides (with respect to which the Government states that 14 victims were not members of the trade union movement), 38 rulings have been handed down, of which 27 were guilty verdicts, 10 not guilty, and 1 a security and correction measure; (ii) of these rulings, 15 related to the perpetrator of the homicide, 3 to the instigator and 11 to both of these; (iii) the average time taken to investigate and obtain guilty verdicts has been reduced to an average of one year and nine months in cases of homicides of trade union leaders and members; (iv) 48 cases have been shelved as it was materially not possible to identify the perpetrators of the homicide, in accordance with section 327 of the Code of Criminal Procedure (although the possibility remains of reopening the cases); (v) arrest warrants have been issued in 7 cases; (vi) 8 cases are at the investigation stage; and (vii) proceedings are at an intermediate stage in 2 cases. With regard to the 35 cases reported by the National Tripartite Committee as having particular significance, the Committee notes that: (i) 7 guilty verdicts have been handed down; (ii) criminal proceedings have been dropped in 4 cases; (iii) arrest warrants have been issued in 4 cases; (iv) 18 cases have been shelved in accordance with section 327 of the Code of Criminal Procedure; and (v) 2 cases are under investigation by the Special Prosecutor’s Office against Impunity. With respect to the murder of Mr Tomás Francisco Ochoa Salazar, Dispute Secretary of the SITRABREMEN trade union organization, the Committee notes that the Public Prosecutor’s Office decided not to appeal the acquittal handed down in order to avoid the risk of altering the status of the guilty verdict previously obtained in the same judicial file against the perpetrators.
4. 244. The Committee takes due note of these various elements. It notes the measures that are still being adopted to improve the effectiveness of investigations into acts of anti-union violence, welcoming in particular the increase in the budget of the Special Investigation Unit for Crimes against Judicial Officials and Trade Unionists. In terms of results achieved, the Committee observes that since its last examination of the present case, five new guilty verdicts have been handed down, and that, according to the information provided by the Government, the average time for sentences to be handed down has been reduced significantly. At the same time, the Committee notes with deep concern that: (i) the majority of the 99 homicides reported in the present case have still not been resolved; and (ii) 48 cases, including 18 of the 35 cases identified as having particular significance by the National Tripartite Committee in 2021 (see 396th Report, para. 340), have been shelved and are consequently not being investigated by the Public Prosecutor’s Office. While it recognizes the particular difficulties involved in shedding light on older murder cases, the Committee observes that it still has no information about any of those cases nor about the specific criteria used in this regard. The Committee recalls once again that it is important that investigations into the murders of trade unionists should yield concrete results in order to determine reliably the facts, the motives and the persons responsible, in order to apply the appropriate punishments and to prevent such incidents recurring in the future [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 96].
5. 245. In view of the above, the Committee urges the Government, in collaboration with the National Tripartite Committee and its subcommittee on implementation of the road map, to continue to take and intensify the necessary measures to ensure the effective investigation of all acts of violence against trade union leaders and members, in order to determine the motives, responsibilities and punish the perpetrators and instigators of the acts, taking the trade union activities of the victims fully into consideration in the investigations. In particular, the Committee urges the Government: (i) to continue guaranteeing that the Special Investigation Unit has a budget commensurate with the importance of its functions and to ensure that the resources allocated allow it to solve cases more effectively, both older and more recent ones; (ii) to guarantee that the competent authorities devote special attention and the resources required to the investigations into the 35 homicides identified as having particular significance by the National Tripartite Committee; and (iii) to ensure that regular meetings continue to be held between the National Tripartite Committee and the Public Prosecutor’s Office, on the one hand, and the Public Prosecutor’s Office and the trade union organizations, on the other, with a view to fostering ongoing collaboration and a comprehensive approach to dealing with cases. The Committee requests the Government to keep it informed in this respect.
6. 246. Regarding the protection of members of the trade union movement who may be at risk (recommendation (c)), the Committee notes the Government’s statement that: (i) at the end of 2022, a dialogue began between the Ministry of the Interior and representatives of the trade union organizations to update Ministerial Decision No. 288-2022 concerning the Special Investigation Unit for the analysis of attacks against trade union leaders and members, in order to address their needs with greater certainty and focus; (ii) in January and March 2023, the National Tripartite Committee invited the Ministry of the Interior to report on the protection measures granted and on other actions to prevent and mitigate acts of anti-union violence; (iii) between 1 June 2022 and 15 January 2023, the Ministry of the Interior received 97 risk analysis requests (58 of which were from the Public Prosecutor’s Office), processed them all within a week and granted 128 perimeter protection measures; (iv) two trade union leaders continue to receive personal security measures, the first since 2017 and the second since 2019; and (v) trade union leaders and members are not required to pay for their protection, as the Ministry of the Interior is responsible for logistical and planning aspects, for which it has an annual allocation of US$1,239,120; and (vi) there are six canteens in the capital to ensure that protected trade unionists do not pay for police officers’ meals.
7. 247. While it takes due note of these elements, the Committee notes with deep concern the Government’s report of the murder of a SITRABI trade union leader in October 2023. Recalling once again that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and that it is for governments to ensure that this principle is respected [see Compilation, para. 84], the Committee urges the Government to take, in coordination with all the competent authorities, the necessary steps to increase the effectiveness of measures to prevent anti-union violence and to protect members of the trade union movement who may be at risk. In particular, the Committee requests the Government: (i) to keep it informed of the result of discussions with trade union organizations regarding a possible modification of Ministerial Decision No. 288-2022 concerning the Special Investigation Unit for the analysis of attacks against trade union leaders and members, recalling that the Government may avail itself of the technical assistance of the Office in this respect; and (ii) to ensure that a regular dialogue is maintained between the National Tripartite Committee and the Ministry of the Interior on measures taken to prevent and mitigate acts of anti-union violence.
8. 248. Observing that the persistence of anti-union violence and the corresponding situation of impunity form part of the allegations in the complaint submitted against Guatemala in June 2023 under article 26 of the ILO Constitution by a number of delegates to the International Labour Conference and, while welcoming the commitment shown by the State at the highest level to the protection of freedom of association and the previously described actions taken, the Committee requests the Government to give due consideration to the points raised in these conclusions and to take all necessary steps in this respect.