Interim Report - REPORT_NO378, June 2016

1. 272. The Committee last examined this case at its June 2013 meeting, when it submitted an interim report to the Governing Body [see 363rd Report approved by the Governing Body at its 318th Session (June 2013), paras 425–496].
2. 273. The Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) sent further allegations in a communication of 30 May 2014. The Trade Union Confederation of Guatemala (CUSG), the General Confederation of Workers of Guatemala (CGTG), the Trade Union of Workers of Guatemala (UNSITRAGUA) and the Movement of Rural Workers of San Marcos (MTC), under the umbrella of the Autonomous Popular Trade Union Movement of Guatemala, sent new allegations in a communication dated 13 September 2014.
3. 274. The Government sent its observations in communications dated 1 October 2013, 7 and 25 May 2014, 7 November 2014, 3 June 2015 and 22 February 2016.
4. 275. 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 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 276. At its meeting in June 2013, the Committee made the following recommendations (see 368th Report, paragraph 496):
   • (a) The Committee expresses once again its deep and growing concern over the seriousness of this case given the many instances of murder, attempted murder, assault, death threats, kidnapping, persecution and intimidation perpetrated against union leaders and members as well as over the allegations of drawing up blacklists and the climate of total impunity.
   • (b) The Committee firmly hopes that the commitments made by the Government in the Memorandum of Understanding signed on 26 March 2013 regarding sanctions against those who planned and executed the murders of union members and protection of union members and leaders from violence and threats will translate into concrete actions and results. Noting with interest the information provided by the Government on the first actions taken to apply the Memorandum of Understanding, the Committee urges the Government to keep it informed of the full range of actions taken in this regard as well as the results obtained.
   • (c) With regard to the murders of Mr Pedro Zamora and Mr Pedro Ramírez de la Cruz, the Committee urges the Government to reopen the investigations in order to identify the perpetrators and instigators of these murders, to discover the motives behind the crimes and to bring those responsible to justice in a court of law. The Committee requests the Government to keep it informed of all developments relating to this matter.
   • (d) With regard to the murders of Mr Romero Estacuy, Mr Víctor Gálvez, Mr Jorge Humberto Andrade, Mr Adolfo Ich, Mr Mario Caal, Mr Pedro Antonio García, Mr Manuel de Jesús Ramírez, Mr Víctor Alejandro Soyos Suret, Mr Juan Fidel Pacheco Curec, Mr Salvador del Cid, Mr Miguel Ángel Felipe Sagastume, Ms Evelinda Ramírez Reyes and Ms María Juana Chojlán Pelicó, the Committee requests the Government to keep it informed of the progress made as well as the results of the judicial trials and ongoing investigations at the earliest opportunity.
   • (e) With regard to the murder of Mr Idar Joel Hernández Godoy, the Committee urges the Government to explain at the earliest opportunity the reasons why the Public Prosecutor’s Office disregarded the possible anti-union motive behind the murder and to take the necessary measures to identify and bring to justice those responsible for the murder.
   • (f) With regard to the murder of Ms Maura Antonieta Hernández, the Committee requests the Government to take the necessary measures to ensure that the possible anti-union motive behind the crime is considered fully in the course of the investigations and criminal proceedings relating to this case [and] to keep it informed of any developments in this regard.
   • (g) With regard to the murder of Mr Matías Mejía, the allegations of death threats against SITRABI board member Ms Selfa Sandoval Carranza, and the allegations of the illegal detention and intimidation of Union of Workers of the Petén Distribution Company (SITRAPETEN) members in several hotels across the country, the Committee requests the complainants to indicate, in relation to these three cases, as precisely as possible, the full names of the victims, the places where the incidents took place, the authorities to whom the incidents were reported, as well as any other information they may have.
   • (h) With regard to the murders of Mr Armando Sánchez, adviser to the Union of Coatepeque Traders and Mr Liginio Aguirre, member of the Union of Guatemalan Health Workers, the Committee once again urges the Government to provide information about the investigations into these murders without delay.
   • (i) With regard to the death threats made against trade union member Ms Lesvia Morales, the Committee urges the Government and the complainant to work together in good faith so that the corresponding file can finally be identified.
   • (j) With regard to the allegations of attempted murder and death threats against Mr Leocadio Juracán, the Committee requests the Government to contact the Human Rights Ombudsman without delay to identify the case in question and thus be in a position to give full information about the actions the State has taken regarding this complaint.
   • (k) With regard to the allegations of attempted extrajudicial killings, death threats and the injuries sustained by the members of the Commercial Workers Union of Coatepeque, the Committee once again urges the Government to launch an independent judicial inquiry into the allegations of attempted extrajudicial killings and death threats against union members. The Committee requests the Government to keep it informed of all the details of these investigations and the resulting criminal proceedings.
   • (l) Recalling that the authorities should resort to the use of force only in situations where law and order is seriously threatened, and that the intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and that governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance to the peace (see Digest, op. cit., para. 140) the Committee requests the Government to take all the necessary measures, such as issuing instructions, drawing up a code of conduct or holding training and awareness courses so that the police can fully apply this principle. The Committee requests the Government to keep it informed of any developments in this regard.
   • (m) With regard to the disappearance of the minor María Antonia Dolores López, and the investigations linked to the criminal action launched against leaders of the Workers’ Union of the Municipality of Zacapa, the Committee once again urges the Government to provide information regarding the investigations launched in connection with these cases without delay.
   • (n) With regard to the murder of Mr Roberto Oswaldo Ramos Gómez, Secretary for Labour and Disputes of the Workers’ Union of the Municipality of Coatepeque, the Committee urges the Government to explain at the earliest opportunity the reasons why the Public Prosecutor’s Office disregarded the possible anti-union motive behind the murder and to take the necessary measures to identify and bring to justice those responsible.
   • (o) With regard to the murder of Mr Manuel de Jesús Ramírez, the Committee urges the Government to take all necessary measures to identify those responsible for this crime and bring them to justice at the earliest opportunity and to keep it informed of all developments in this regard.
   • (p) The Committee urges the Government to take immediate and decisive measures to fight the impunity surrounding allegations of anti-union violence and to ensure that the principles of freedom of association are fully taken into consideration in all actions taken by the Public Prosecutor’s Office and the criminal courts. In particular, the Committee urges the Government to:
     • – take steps to initiate systematic investigations when reports of anti-union incidents are received;
     • – develop and apply effective protective measures for people who agree to collaborate in criminal investigations into acts of anti-union violence;
     • – guarantee that the Public Prosecutor’s Office will systematically request information from the unions involved to determine the victims’ membership to the union movement and identify possible anti-union motives behind the offences under investigation. In this regard, the Committee requests the Government to ensure, in particular, that the Public Prosecutor’s Office works with the unions involved to re-examine the murder cases that have not yet led to convictions, including cases considered as having no new leads;
     • – significantly reinforce the Public Prosecutor’s Office’s resources and training for freedom of association, in particular those available to the Public Prosecutor’s Office regarding crimes against trade union members. In this regard, the Committee takes note of the Government’s request for technical assistance.
   • (q) The Committee requests the Government to take without delay the necessary measures to register the prison service union and to align its legislation with Convention No. 87 and the principles of freedom of association by extending the right to organize to prison staff. The Committee draws the legislative aspects of this issue to the attention of the CEACR.
   • (r) With regard to the alleged refusal to register the Workers’ Union of the Municipality of Rio Bravo, the Committee requests the complainant to submit further information so that this organization can be located in the database of the General Directorate for Labour.
   • (s) As regards the detention of members of the Union of Heavy Goods Transport Drivers after a protest in May 2008, the Committee requests the complainant to provide more information to locate this union.
   • (t) With regard to the criminal action launched against leaders of the Workers’ Union of the Municipality of Zapaca, the investigations into the drawing up of blacklists, the alleged freedom of association violations in Las Américas LLC and Crown Plaza Guatemala hotels, the law courts associated with reinstatement orders and dismissals in the Union of Workers of the Municipality of Chimaltenango, the Committee once again urges the Government to communicate the requested information regarding these allegations.
   • (u) The Committee requests the Government to send its observations about the additional information and new allegations laid out in the MSICG’s communications dated 15, 17, 18, 20 and 22 February 2013 at the earliest opportunity.
   • (v) The Committee once again calls the Governing Body’s special attention to the extreme seriousness and urgency of the issues in this case.

B. Additional information and new allegations from the complainant organizations

1. 277. In a communication dated 30 May 2014, the MSICG complained that death threats have been made against Mr Jorge Byron Valencia Martinez, Secretary-General of the Union of Administrative and Educational Service Workers of Guatemala (STAYSEG). The complainant organization states that: (i) on 16 and 17 December 2013, after speaking on television in favour of the signing of the aforementioned collective agreement, the Secretary-General of STAYSEG was twice subjected to death threats from armed men claiming to represent the Minister of Education; (ii) the case is being investigated by the Special Investigation Unit for Crimes against Trade Unionists (hereinafter, the Special Unit), which has proved totally ineffective in its handling of the complaint; (iii) Mr Jorge Byron Valencia Martinez seized the Inter-American Commission of Human Rights of the matter, following which the national civil police considered his life to be at high risk; (iv) notwithstanding the foregoing, he was given only a non-motorized escort, the basic cost of which had to be borne in part by the trade union leader.
2. 278. In a communication dated 13 September 2014, the Autonomous Popular Trade Union Movement of Guatemala conveyed reports of 16 other murders of trade union members committed in 2013 and 2014, listed below. The complainant organizations allege that the total impunity that has prevailed in respect of the dozens of murders previously reported to the Committee also exists with regard to the 16 new murders.

   • Name		Organization		Date of murder
     Mayro Rodolfo JUÁREZ GALDAMEZ		Taxi Drivers Union of Izabal (SIGTADI), UNSITRAGUA	2 January 2013
     Joel GONZÁLEZ PÉREZ		UNSITRAGUA	13 February 2013
     Juan MARTÍNEZ MATUTE		Union of Public Service Transport Workers of Ciudad Pedro de Alvarado (SITRASEPUCPA)	16 February 2013
     Carlos Antonio HERNÁNDEZ MENDOZA		Focal Point of Eastern Community, Indigenous, Church, Trade Union and Rural Organizations–National Fighting Front	8 March 2013
     Jerónimo SOL AJCOT		National Indigenous and Rural Focal Point (CONIC)	12 March 2013
     Santa ALVARADO		National Union of Health Workers of Guatemala (SNTSG)	21 March 2013
     Kira Zulueta ENRÍQUEZ MENA		Union of Workers of the Municipality of Nueva Concepción, Escuintla	22 March 2013
     Jorge Ricardo BARRERA BARCO		SPASG	23 May 2013
     Gerardo de Jesús CARRILLO NAVAS		CUSG	25 March 2014
     William RETANA CARIAS		CUSG	7 April 2014
     Manuel de Jesús ORTIZ JIMÉNEZ		CUSG	8 April 2014
     Genar Efrén ESTRADA NAVAS		CUSG	13 May 2014
     Edwin Giovanni DE LA CRUZ AGUILAR		CUSG	14 May 2014
     Luis Arnoldo LÓPEZ ESTEBAN		CGTG	11 May 2014
     Marlon VELÁZQUEZ		National Building and Timber Union (SINCG)	6 January 2014
     Eduardo MARTÍNEZ BARRIOS		SINCG	20 August 2014

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3. 279. The complainants refer to the report prepared by the International Commission against Impunity in Guatemala (CICIG), entitled “Status of investigations into the deaths of trade union leaders in Guatemala”, submitted to the Tripartite Commission for International Labour Affairs on 31 July 2014. They note that the investigation was undertaken following a request for support to the CICIG from the Public Prosecutor’s Office for the review of a number of cases of killings of trade union leaders, which led to the conclusion, on 24 September 2013, of an agreement on collaboration between the two institutions aimed at building the capacity of local authorities to analyse and investigate cases of violence against trade union leaders and members. The complainants state that the CICIG report confirms the impunity existing in Guatemala, given that, in only one of the 38 cases studied, is a judicial decision said to have been handed down against one of those responsible for the murder; and that the report further notes that in the vast majority of cases the investigations were marked by considerable inefficiency.
4. 280. The complainants go on to express a number of reservations regarding the aforementioned CICIG report, due to the fact that it is based on an analysis of the files of the Public Prosecutor’s Office, without any effort being made to obtain the necessary information from the complainant trade union organizations. According to the complainants, in a context marked by numerous murders and other acts of violence against trade union leaders and members and a 98 per cent rate of impunity through lack of political will on the part of the Government, it is surprising that the CICIG centred its analysis on a hypothesis never raised by the complainants or relatives of the victims. The hypothesis in question is said to be that there had been systematic, premeditated criminal actions to impair or eliminate the right of trade union association in general or the right to freedom of association of particular organizations. The complainants state that there can be no common standards to reveal the existence of systematic, premeditated criminal actions in respect of cases that occurred between 2004 and 2013 under different circumstances and governments in a country where anti-union actions take multiple forms.
5. 281. In addition, the complainants express doubts concerning the conclusions of the CICIG report as to the motives behind the murders. The complainants note that, while the CICIG considers only six of the 32 cases considered by it to be related to the victim’s trade union membership, its report clearly establishes that the vast majority of cases are still under investigation without any responsibility being assigned for the murders, and furthermore that there were considerable inefficiencies in the investigations; and that those two facts make it impossible to state with any certainty that the murders were not linked to the trade union activity of the victims.
6. 282. The complainants state lastly that in the “only six cases” where the victim’s trade union affiliation is said to be linked to the murder, the investigation has not been completed, no guilty parties have been identified and there have been no prosecutions, therefore reaching the conclusion that, even considering the signal shortcomings of the CICIG report, the State is not adequately investigating or punishing the perpetrators of murders of trade union members.
7. 283. The complainants then refer to the response of the Public Prosecutor’s Office to the acts of violence committed against members of the trade union movement. They state that the new Chief Public Prosecutor, who took up office in May 2014, has not taken any concrete action to suggest that protection of freedom of association is one of his institutional priorities. The complainants further note that, despite the commitment made by the Government in point 4 of the roadmap to promote the direct participation of victims and trade union organizations throughout the criminal investigation and proceedings, the former level of participation of the victims’ relatives has been maintained, limited to the initial complaint and one routine interview. Similarly, trade union organizations have not been called on at any stage in the proceedings nor have they been allowed to act as the complainant parties.
8. 284. The complainants allege lastly that the Ministry of the Interior has not fulfilled its commitments to preventing, protecting from and reacting to threats and attacks against trade union leaders and members. They note in particular that: (i) the permanent trade union panel on comprehensive protection set up in 2013 by the Ministry of the Interior did not meet even once between 12 March and 18 August 2014; and (ii) at its last meeting, the Ministry of the Interior introduced a protocol on the implementation of immediate and preventive security measures for human rights defenders in Guatemala, which is, however, no more than a copy of an existing generic protocol, without any adjustment for its concrete application to trade unionists.

C. The Government’s reply

Murders

1. 285. In the course of regularly forwarding information on investigations and proceedings relating to cases of murders of trade union leaders and members covered by this complaint, the Government provided, in February 2016, information regarding 70 killings reported by trade union organizations of Guatemala. On that occasion, the Government stated that: (i) as at 31 December 2015, 14 judicial sentences had been handed down, including 11 convictions; and (ii) of the 14 judicial sentences, six had been delivered between 2007 and 2013, six in 2014 and two in 2015. The Government also transmitted specific information provided by the Public Prosecutor’s Office concerning each of the investigations into the murders of trade union leaders and members on which no judicial sentence has yet been handed down.
2. 286. The Government also reports a seventy-first murder, that of Mr Mynor Rolando Castillo Ramos, a member of the Union of Workers of the Municipality of Jalapa, which occurred in the municipality and department of Jalapa on 24 September 2015. The Government notes that the necessary investigations were carried out immediately, thereby enabling the Public Prosecutor’s Office to bring formal charges and institute proceedings against the perpetrator of the crime.
3. 287. In its various communications, the Government also reports a series of steps to enhance the efficiency of criminal investigations and proceedings relating to the murders of trade union leaders and members. The Government refers firstly to the strengthening of the Special Investigation Unit for Crimes against Trade Unionists, to which nine new members were appointed (from five members in 2011, it was increased to 12 members in 2014). Furthermore, it ordered that all cases of crimes against trade union members under investigation in the country be referred to that Special Unit. In addition, the Public Prosecutor’s Office, in coordination with the representative of the Director-General of the ILO in Guatemala, held a series of training courses aimed, in particular, at the personnel of the Special Unit.
4. 288. The Government also reports the conclusion in September 2014 of an outline agreement on cooperation between the judiciary, the Public Prosecutor’s Office, the Ministry of the Interior and the Ministry of Labour and Social Welfare, which provides for the establishment of an inter-agency coordination group whose function is to facilitate and exchange information on crimes committed against unionized workers.
5. 289. The Government reports a strengthening of the trade union panel of the Public Prosecutor’s Office set up in 2013, in which are represented the Public Prosecutor’s Office and the main trade union confederations in the country. The Government states that: (i) the Public Prosecutor’s Office held 15 meetings of the trade union panel in 2015, with at least one meeting every month; and (ii) such meetings provide a good means for trade union organizations to be informed about the progress of investigations into killings of trade union leaders and members and also for trade union organizations to provide any additional information relevant to the investigations.
6. 290. The Government also reports that the Public Prosecutor’s Office, after consulting the social partners, adopted in February 2015 general directive No. 1–2015 on the investigation and effective criminal prosecution of crimes committed against members of trade unions and workers’ organizations and other defenders of labour and trade union rights. The Government indicates that general directive No. 1–2015 is being implemented and that the investigation procedures set out therein were particularly useful in the case of the death of Mr Mynor Rolando Castillo Ramos, a member of the Union of Workers of the Municipality of Jalapa, which occurred on 24 September 2015.
7. 291. The Government also refers to the collaboration established since 2013 between the Public Prosecutor’s Office and the CICIG, stating that: (a) on 24 September 2013, both institutions signed an agreement on collaboration whereby the CICIG undertakes to provide support in reviewing the investigation of cases of violent deaths of trade union members; (b) the CICIG department of investigations and litigation was tasked with reviewing the cases in order to determine how the investigation had been handled, the motive behind each murder and future follow-up action; (c) 56 cases were submitted for review (two were not reviewed as the corresponding files were not forwarded); (d) the review was confined to 37 cases, namely: 32 cases in which it was certain that the victims were registered members of a trade union organization, four cases in which it was not certain that the victims were registered members of such an organization and one case in which the victim was not a trade union member but, in his capacity as a lawyer, acted in the defence of trade union organizations; the investigations in the other cases were not reviewed, given that the victims were found not to be registered members of trade unions; (e) with regard to the motive behind the various murders, it emerged from the review of the files that six cases had originated in the trade union activity of the victims (in two of them, it was confirmed that their trade union membership was the direct motive for the murder and in the four remaining cases a probable link was established; they are under investigation); (f) the violent deaths reported concern several trade union organizations and only in nine cases were the victims members of the same organization, namely, the Union of Banana Workers of Izabal; (g) in its analysis of the proceedings, the CICIG noted the following negative factors having a significant bearing on the course of the investigations: (i) attributable to the Public Prosecutor’s Office: the absence of methodological plans; transfer of files between public prosecution services and lack of continuity in the prosecution officers assigned to cases; delayed arrival at the scene of the crime and procedural errors; widespread delays in the conduct of criminal investigations; and (ii) imputable to other participants in the process: a lack of collaboration by citizens and witnesses’ fear of testifying; shortcomings in police efforts to clarify cases; and shortcomings in forensic reports; (h) in the investigations assigned to the Special Investigation Unit for Crimes against Trade Unionists, more detailed investigation plans and better founded investigations were noted; (i) it could be inferred from the geographical location of the deaths, that the majority of them occurred in places where violence is most rife in the country; (k) the number of judgments handed down in these cases is conspicuously low – only two –, which reflects a lack of action by the bodies responsible for administering justice. The representatives of the Ministry of Labour emphasized that, according to the CICIG report, the reviews of the cases carried out afford no ground for the hypothesis that, at least in respect of the sample of cases considered, there has been a practice of eliminating or exterminating members of the trade union movement in Guatemala.
8. 292. The Government indicates that the agreement on collaboration between the Special Investigation Unit of the Public Prosecutor’s Office for Crimes against Trade Unionists and the CICIG continues to be implemented. Under that agreement, the CICIG issues recommendations on the handling of the investigations relating to the 12 murder cases identified by the trade union movement in Guatemala. Six joint working meetings have been held in this connection between the CICIG and the Special Unit since June 2015.

Other acts of violence and threats against trade union members

1. 293. With regard to the death threats against the trade union member Ms Lesvia Morales, concerning which the Committee had urged the Government and the complainant organization to work together in good faith so that they can finally identify the relevant file, the Government communicates the following information provided by the Public Prosecutor’s Office: (i) in the databases of the Public Prosecutor’s Office no trace has been found of that name and surname; (ii) however, within that system, searches are carried out using complete names and surnames (two names and two surnames), consequently the search would need to be refined in case “Lesvia Morales” is in fact one name and one surname.
2. 294. With regard to the murder attempt and death threats against Mr Leocadio Juracán, in October 2013 the Government communicated the information provided by the Public Prosecutor’s Office, indicating that: (i) Mr Leocadio Juracán’s complaint was reported to the Office of the Human Rights Ombudsperson, which transmitted it to the Public Prosecutor’s Office; (ii) the victim was summoned to appear several times in order to clarify and attest to the circumstances of the crime; (iii) however, Mr Leocadio Juracán never appeared; (iv) contact was made with acquaintances of Mr Juracán who delivered to him a new summons for 24 September 2013, but again he failed to appear; (v) to the extent that the crime of making threats is an offence that is liable to public prosecution upon application by the party concerned, it is not possible for the Public Prosecutor’s Office to pursue the corresponding investigation.
3. 295. With regard to the Committee’s recommendation that the Government take all necessary measures to ensure that the forces of order fully implement the principles of freedom of association when maintaining public order during demonstrations, the Government reports: (i) the adoption in 2012 of the protocol on police conduct in evictions, No. 01–2012, issued by the Directorate of the National Civil Police of the Ministry of the Interior; and (ii) the inclusion of three paragraphs on the use of force for the maintenance of public order in the manual on referendums and consultation, under police procedures core assignment 5, of the Academy of the National Civil Police.

D. The Committee’s conclusions

1. 296. The Committee recalls that, in this case, the complainant organizations reported numerous murders and acts of violence against trade union leaders and members, as well as the related situation of impunity, acts of anti-union discrimination, denial of legal status to several trade unions and failures in the system of labour justice.
2. 297. Considering the high number of murders and acts of violence reported in connection with this case and the existence of several ongoing cases presented by one of the complainant organizations, the MSICG, relating to the aforementioned other allegations, the Committee has decided that from now on it will limit itself in this case to examining the allegations of murders, other acts of anti-union violence and the related situation of impunity. In light of the nature of the allegations and the identity of the complainant organization, the acts of anti-union discrimination, the denial of legal status to several trade unions and the failures in the system of labour justice reported in this case will be dealt with, respectively, in Cases Nos 2948, 3042 and 3089.
3. 298. The Committee observes that, since its last examination of this case in June 2013, the Governing Body of the ILO has examined on seven occasions the complaint concerning non-observance by Guatemala of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), made by delegates to the 101st Session (2012) of the International Labour Conference under article 26 of the ILO Constitution. The Committee recalls that the complaint relates, inter alia, to the murders of trade union leaders and members and the prevailing impunity in that regard. The Committee notes in particular that: (i) as a follow-up to the complaint made under article 26 of the ILO Constitution, a representative of the Director-General of the ILO has been present in Guatemala since July 2013; (ii) following the visit of a high-level tripartite mission to the country in September 2013, the Government, in October 2013, adopted, in consultation with the social partners, a roadmap whereby it undertakes to ensure the timely trial and conviction of the perpetrators and instigators of the crimes against trade union officials and members and to strengthen the prevention and protection mechanisms in respect of threats and attacks against trade union officials and members; and (iii) the Governing Body decided, at its 326th Session (March 2016), to defer to its November 2016 session consideration of the possible appointment of a Commission of Inquiry.
4. 299. The Committee also observes that, as a follow-up to the complaint made under article 26 of the ILO Constitution, both the complainant organizations in this case and the Government have regularly submitted extensive information to the Governing Body of the ILO. The Committee will refer to the content of the information when it is relevant to its examination of the allegations in this case.
5. 300. For the sixth time, the Committee deeply deplores the numerous acts of violence denounced in the complaint and expresses its deep concern about the high number of murdered trade union leaders and members. The Committee expresses its deep and utmost concern about the report by the complainant organizations of 16 additional murders of members of the trade union movement in 2013 and 2014 and the indication, in the follow-up to the complaint made under article 26 of the ILO Constitution, both by the complainant organizations and by the Government, of the murder of Mr Mynor Ramos, member of the Union of Workers of the Municipality of Jalapa in September 2015. The Committee once again draws the Government’s attention to the fact that union rights can only be exercised in a climate free from violence, intimidation and threats of any kind against trade union members, and that it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 44].

Allegations of murders already examined

1. 301. With regard to the investigation and prosecution of murders of trade union leaders and members, the Committee takes note first of the points made by the complainant organizations, both in this complaint and in the follow-up to the complaint made under article 26 of the ILO Constitution. The Committee notes that the CUSG, the CGTG and UNSITRAGUA, under the umbrella of the Autonomous Popular Trade Union Movement of Guatemala, state that: (i) no further progress has been made in respect of the investigation of murders of trade union leaders and members; (ii) the very few murder cases that the Public Prosecutor’s Office has managed to bring before the courts do not reveal, according to that institution’s investigations, anti-union characteristics; (iii) as is publicly admitted by the Public Prosecutor’s Office, that institution has neither the budget nor the human and material resources needed to perform its work effectively; (iv) the 2014 CICIG report on investigations into a series of murders of trade union members highlighted significant failings on the part of the Public Prosecutor’s Office and the courts; (v) however, the aforementioned report suffered from a number of shortcomings in that it was based mainly if not exclusively on the files of the Public Prosecutor’s Office; (vi) the witness protection system has neither effective mechanisms nor sufficient resources to ensure the safety of witnesses; (vii) general directive No. 1–2015 has not been properly implemented.
2. 302. Similarly, the Committee notes that the MSCIG has stated that: (i) 100 per cent of the instigators of murders of trade union leaders and members are free and unpunished; (ii) more than 97 per cent of perpetrators of such acts are free and unpunished; (iii) 100 per cent of acts of anti-union violence are totally unpunished; (iv) the Government’s position, which consists of disregarding the anti-union motive behind a considerable number of murders of trade union members, is not acceptable so long as no final judgments have been delivered against the perpetrators and instigators of these acts and so long as it has therefore not been proved that the crime was motivated by circumstances unconnected with the victim’s trade union activities.
3. 303. The Committee takes note of the overall information provided by the Government on the progress of the investigations and criminal proceedings in respect of 70 killings reported by various trade union organizations of Guatemala. The Committee takes note of the Government’s indications, according to which: (i) as at 31 December 2015, 14 judicial sentences had been handed down, including 11 convictions; and (ii) of the 14 judicial sentences, six were delivered between 2007 and 2013, six in 2014 and two in 2015.
4. 304. The Committee also takes note of the information provided by the Government on the investigations in respect of murders of trade union leaders and members on which no judicial sentence has yet been handed down. The Committee notes that this information derives from 56 cases awaiting sentencing: 40 cases are at the investigation stage; one case is awaiting criminal prosecution; in 11 cases, arrest warrants have been issued that have not yet been enforced; one case is disputed; one case has given rise to a stay of proceedings; and, in two cases, criminal prosecution has been abated by the death of the accused persons.
5. 305. The Committee also takes note of the Government’s indications concerning the steps to strengthen the effectiveness of investigations and criminal procedures in respect of the murders of trade union leaders and members taken in pursuance of the roadmap adopted in October 2013 in consultation with social partners in the country, as part of the follow-up to the complaint made under article 26 of the ILO Constitution. The Committee notes in particular that the Government, both in the observations on this case and in the material provided as part of the follow-up to the complaint made under article 26, reports that: (i) the Special Unit of the Public Prosecutor’s Office for Crimes against Trade Unionists has been strengthened and is now responsible for investigating virtually all the cases of murders of trade union leaders and members; (ii) a trade union panel has been set up and consolidated and holds monthly meetings bringing together representatives of the Public Prosecutor’s Office and the main trade unions in the country in order to facilitate the exchange of information regarding the investigations; (iii) after consulting the social partners, the Public Prosecutor’s Office adopted, in February 2015, general directive No. 1–2015 for the investigation and effective criminal prosecution of crimes committed against members of trade unions and workers’ organizations and other defenders of labour and trade union rights; (iv) under the agreement on collaboration between the Special Unit and the CICIG, concluded in September 2013, in 2014 the CICIG delivered a report on investigations carried out in respect of 37 murders highlighting a number of failings in the investigations and considering that it could not be deduced from the elements available that there existed a predetermined plan to eliminate the trade union movement; (v) under the agreement on collaboration between the Special Unit and the CICIG, 12 files on murder investigations identified by the trade union movement in Guatemala were delivered to the CICIG on 15 June 2015 in order for it to make recommendations on the handling of the aforementioned investigations.
6. 306. On the basis of these elements and of the documentation provided on the investigation and criminal prosecution of 70 murders identified by the Government, the Committee first notes with interest that the vast majority of the investigations fall under the responsibility of the Special Unit. The Committee considers that provided that the said Unit has sufficient human and material resources to perform its tasks, centralizing investigations to the Unit may contribute to the development and implementation of a specific methodology that takes fully into account the trade union characteristics of the victims in determining the motives behind the murders and identifying the guilty parties. The Committee considers that this is illustrated by the adoption of the aforementioned general directive No. 1–2015. The Committee also emphasizes that regular meetings of the trade union panel can be expected to facilitate the exchange of information between trade union organizations and the Public Prosecutor’s Office.
7. 307. The Committee also notes with interest the cooperation extended to the Public Prosecutor’s Office by the CICIG. Concerning the report prepared by the CICIG in 2014, the Committee takes note of document GB.322/INS/8, presented as follow-up to the complaint made under article 26. In that report, an ILO mission provided the following information:
   • The mission met with a representative of the CICIG who indicated that: (1) the CICIG only reviewed the investigations carried out by the Public Prosecutor’s Office on the basis of the information available, and did not carry out any investigations of its own; (2) it only checked whether the victims were union members but did not examine the phenomenon of anti-union violence; (3) it found that the investigations are carried out in isolation and that the families of the victims feel frustrated at seeing time go by without effective results; (4) the report has a limited scope and the criteria for investigation should be reviewed in order to determine whether the murders in question are linked to the trade union activities of the victims; and (5) the 58 cases should be reviewed again, on the basis of a new methodology. The Chief Public Prosecutor also indicated that the report of the CICIG is not final and that it is just another instrument of use to the investigators of the Public Prosecutor’s Office.
8. 308. The Committee encourages the continuing development of collaboration between the Public Prosecutor’s Office and the CICIG and stresses the importance of concerned trade union organizations being consulted when that institution is examining murder cases. In this connection, the Committee requests the Government to keep it informed of the results of such collaboration in regard to the 12 murder cases selected in June 2015.
9. 309. While taking due note of the aforementioned initiatives, the Committee observes in general with utmost concern: (i) the still very low number of murders that have led to convictions (11 out of 70), despite the amount of time that has elapsed since the events; (ii) the even smaller number of cases (2) of convictions of the instigators; (iii) the high number of arrest warrants that continue to be not enforced; (iv) the even higher number of cases under investigation in respect of which, according to the description given by the Public Prosecutor’s Office, there is no hint of any imminent possibility of identifying the perpetrators and instigators of the crimes. The Committee recalls in this connection that the absence of judgments against the guilty parties creates in practice a situation of impunity which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest, op. cit., para. 52].
10. 310. In addition, the Committee observes with particular concern that the cases with regard to which evidence has already been found of a possible anti-union motive (either because large numbers of members of the same union have been killed, or because the CICIG or the Public Prosecutor’s Office itself has already specifically identified a possible anti-union motive, or because the victims belonged to trade unions concerning which the Committee was aware that, at the time of the events, they were targeted by anti-union acts) have not given rise either to convictions or to significant progress in the investigations, particularly in respect of the instigators. The Committee draws attention to the following cases in this connection: (i) the nine murders of leaders and members of the Union of Banana Workers of Izabal (SITRABI), Mr Marco Tulio Ramírez Portela (investigation carried out in collaboration with the CICIG), Mr Carlos Enrique Cruz Hernández, Mr Idar Joel Hernández Godoy, Mr Oscar Humberto González Vásquez, Mr Henry Aníbal Marroquín Orellana, Mr Pablino Yaque Cervantes, Mr Héctor Alfonso Martínez Cardona, Mr Mardo de Jesús Morales Cardona and Mr Miguel Ángel Gonzales Ramírez; (ii) the three murders of leaders and members of the Union of Workers of the Municipality of Coatepeque, Mr Roberto Oswaldo Ramos Gómez, Mr Armando Donaldo Sánchez Betancourt and Mr Amado Corazón Monzón, and the murders of Mr Wilder Hugo Barrios López, of the Union of Minibus Drivers of the Magnolia Camposanto District, and of Mr Luis Haroldo García Ávila, of the Union of Commercial Workers of Coatepeque, which, according to the Public Prosecutor’s Office, could be linked to the murders of the members of the Union of Workers of the Municipality of Coatepeque; (iii) the three murders of leaders and members of the National Union of Health Workers of Guatemala, Mr Sergio Miguel García, Mr Lisinio Aguirre Trujillo and Mr Julio Pop Choc, the possible anti-union motive behind the first two having been identified by the Public Prosecutor’s Office and the CICIG; (iii) the murder of Mr Pedro Antonio García, of the Union of Municipal Workers of Malacatán, San Marcos, which was considered to have a possibly anti-union motive by the CICIG; (iv) the murder of Mr Manuel de Jesús Ramírez, Secretary-General of the Union of Technical and Administrative Support Workers of the Criminal Public Defence Institute, who had reported to the Committee the dismissal of the founding members of his organization (Case No. 2978) and whose murder is considered to have a possibly anti-union motive by the Public Prosecutor’s Office; and (v) the murder of Mr Juan Fidel Pacheco Coc, Secretary-General of the Union of Migration Clerks, who, before his murder, had complained to the Committee of anti-union practices and threats against members of his organization (Case No. 2673).
11. 311. With regard to the nine aforementioned murders of members of SITRABI, the Committee notes with regret that the Public Prosecutor’s Office merely mentions the difficulties in identifying witnesses to the murders and does not provide information concerning any investigations aimed at identifying the instigators of the nine murders. In the specific case of the investigations into the murder of Mr Héctor Alfonso Martínez Cardona, member of SITRABI, the Committee does not understand the reasons why the Public Prosecutor’s Office’s request for permission to locate the mobile telephone carried by the victim at the time of the incident was denied by the courts. In light of this example, the Committee urges that the necessary steps be taken to strengthen collaboration between the Public Prosecutor’s Office and the judiciary.
12. 312. Noting that the CICIG is providing support for the investigation of some of the cases referred to in the two preceding paragraphs, the Committee urges the Government, in accordance with the guidelines suggested by the CICIG, to take as a matter of urgency all necessary measures to ensure that the investigations are directed towards both the perpetrators and the instigators of the acts and that, in planning and conducting the investigations, the possible anti-union motive behind the murders be fully and systematically taken into account. The Committee urges the Government to keep it promptly informed of the initiatives taken and the results obtained.
13. 313. Generally speaking, while being aware of some steps that have been taken since the adoption of the roadmap in 2013, the Committee considers that the high degree of impunity that continues to prevail and the very high number of murders awaiting elucidation and sentencing urgently require the allocation of additional economic and human resources to the Special Unit. The Committee urges the Government to inform it promptly of the initiatives taken and the results obtained in this regard. Similarly, while it has taken note of the adoption in September 2014 of an outline agreement on cooperation between the judiciary, the Public Prosecutor’s Office, the Ministry of the Interior and the Ministry of Labour and Social Welfare, the Committee observes that a substantial number of arrest warrants continue not to be enforced and that, in some cases, requests for judicial authorization to advance investigations have not been granted. Accordingly, recalling the commitments made by the Government under the roadmap, the Committee urges the Government to strengthen inter-agency collaboration between the aforementioned bodies with regard to the murders of trade union leaders and members.
14. 314. In addition, recalling the comments contained in the 2014 CICIG report on the lack of action of the bodies tasked with administering justice and noting that, as a follow-up to the complaint under article 26, the Government reported that the Supreme Court had prepared a draft text in that connection, the Committee encourages the Government to take all necessary measures to establish special courts in order to deal more swiftly with crimes and offences committed against members of the trade union movement. The Committee requests the Government to inform it of the concrete initiatives taken in this regard. Furthermore, as in its previous examination of the case, the Committee continues to observe that the information provided by the Public Prosecutor’s Office, on the one hand, and the CICIG report, on the other, refers in several cases to the impossibility of relying in the investigations on the collaboration of witnesses, owing to their fear of reprisals. The Committee therefore urges the Government once again to develop and implement effective protection measures for persons who agree to collaborate in criminal investigations into acts of anti-union violence. The Committee requests the Government to keep it promptly informed of initiatives taken in this regard.

New allegations of murders

1. 315. With regard to the aforementioned complaint made by the Autonomous Popular Trade Union Movement of Guatemala concerning 16 additional murders of trade union leaders and members in 2013 and 2014, the Committee notes that the Government reports as follows: (i) on 17 September 2015, Mr José Cruz López Yax was sentenced to a 30-year prison term for the murder of Ms Santa Alvarado Cajchum, the motive for the murder being conjugal separation; (ii) with regard to the murder of Mr Carlos Antonio Hernández Mendoza, the court has ordered a stay of proceedings; (iii) with regard to the murder of Mr Jorge Ricardo Barrera Barco, a case which has the support of the CICIG, a request has been made for abatement of the criminal prosecution; (iv) in the case of the murders of Mr Mayro Rodolfo Juárez Galdámez, Mr Joél González Pérez, Mr Juan Martínez Matute and Ms Kira Zulueta Enríquez Mena, the relevant investigations are being carried out; investigations into the murders of Ms Kira Zulueta Enríquez Mena and Mr Mayro Rodolfo Juárez Galdámez are being carried out with the support of the CICIG.
2. 316. The Committee requests the Government to provide further information about the reasons for the request for abatement of the criminal prosecution concerning the murder of Mr Jorge Ricardo Barrera Barco and for a stay of proceedings in the case concerning Mr Carlos Antonio Hernández Mendoza, leader of the National Union of Health Workers, a trade union organization already affected by several murders.
3. 317. Furthermore, the Committee notes with concern that the Government provides no information regarding the murders of: (i) Mr Jerónimo Sol Ajcot; (ii) Mr Gerardo De Jesús Carrillo Navas; (iii) Mr William Retana Carias; (iv) Mr Manuel De Jesús Ortiz Jiménez; (v) Mr Genar Efrén Estrada Navas; (vi) Mr Edwin Giovanni De La Cruz Aguilar; (vii) Mr Luis Arnoldo López Esteban; and (viii) Mr Marlon Velázquez, and that those names do not appear on the lists of the Public Prosecutor’s Office. Recalling that, in the event of assaults on the physical or moral integrity, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., para. 50]. The Committee therefore urges the Government to send as promptly as possible information concerning the relevant investigations to identify and bring to justice both the perpetrators and the instigators of the acts.

Other allegations of violence already examined

1. 318. With regard to the death threats against the trade union member Ms Lesvia Morales, concerning which the Committee had urged the Government and the complainant organization to work together in good faith so that the relevant file can finally be identified, the Committee notes that the Government, in a communication of 3 June 2015, transmits the information provided by the Public Prosecutor’s Office, indicating that: (i) in the databases of the Public Prosecutor’s Office no trace has been found of that name and surname; (ii) however, within that system, searches are carried out using complete names and surnames (two names and two surnames), and consequently the search would need to be refined in case “Lesvia Morales” is in fact one name and one surname. In light of the foregoing, the Committee once again urges the Government to carry out a full investigation in the records of the Public Prosecutor’s Office to determine whether or not the aforementioned complaint exists and urges the MSICG to cooperate in the search. The Committee requests the Government and the complainant organization to keep it informed in this regard.
2. 319. With regard to the murder attempts and death threats against Mr Leocadio Juracán, the Committee had requested the Government to contact the Office of the Human Rights Ombudsperson without delay to identify the case in question and thus be in a position to give full information about the actions taken by the State in respect of this complaint. The Committee notes that the Government indicates that: (i) Mr Leocadio Juracán’s complaint was reported to the Office of the Human Rights Ombudsperson, which transmitted it to the Public Prosecutor’s Office; (ii) despite being summoned to appear on repeated and different occasions by the Public Prosecutor’s Office, Mr Leocadio Juracán never appeared; (iii) to the extent that the crime of making threats is an offence that is liable to public prosecution upon application by the party concerned, it is not possible for the Public Prosecutor’s Office to follow up with the corresponding investigation.
3. 320. With regard to the allegations of death threats against Ms Selfa Sandoval Carranza, SITRABI board member, and the allegations of illegal detention and intimidation of members of the SITRAPETEN in several hotels across the country, the Committee notes that it has not received the additional information requested from the complainant organizations. The Committee reiterates its request, pointing out that, in the event of it not receiving the said information for its next examination of the case, it will not pursue its examination of the aforementioned allegations.
4. 321. With regard to the allegations of attempted extrajudicial killings, death threats and the injuries sustained by the members of the Union of Commercial Workers of Coatepeque, the Committee notes with regret that it still has not received the relevant observations of the Government. Recalling the commitments made by the Government under the roadmap adopted in October 2013 and further observing that several members of the aforementioned organization were murdered, the Committee once again urges the Government to institute an independent judicial inquiry into the allegations of attempted extrajudicial killings and death threats sustained by the trade union members. The Committee requests the Government to keep it informed in detail about such investigations and the resulting criminal proceedings.
5. 322. The Committee also notes again with regret the absence of information as to the whereabouts of María Antonia Dolores López, a minor at the time of the events (13 years old), daughter of Roberto Dolores, who disappeared, apparently as the victim of a kidnapping, a few days after her father had testified concerning the murder of Mr Miguel Ángel Ramírez Enríquez. Recalling the importance of providing effective protection for witnesses of anti-union violence, the Committee urges the Government to inform it of the actions taken to determine the whereabouts of María Antonia Dolores López.
6. 323. With regard to the Committee’s recommendation that the Government take all necessary measures to ensure that the forces of order fully implement the principles of freedom of association when maintaining public order during demonstrations, the Committee notes that the Government reports: (i) the adoption in 2012 of the protocol on police conduct in evictions, No. 1–2012, issued by the Directorate of the National Civil Police of the Ministry of the Interior; and (ii) the inclusion of three paragraphs on the use of force for the maintenance of public order in the manual on referendums and consultation, under police procedures core assignment 5, of the Academy of the National Civil Police.

New allegations of violence

1. 324. The Committee notes that it has not received the Government’s comments regarding the death threats against Mr Jorge Byron Valencia Martinez, Secretary-General of STAYSEG. Emphasizing the seriousness of the allegations and recalling the Government’s commitments under the roadmap to protect members of the trade union movement against acts of violence, the Committee urges the Government to take all necessary measures to provide adequate protection to Mr Jorge Byron Valencia Martinez. Observing in addition that the complainant organization alleges that the trade union leader had to assume part of the basic costs of the escort assigned to him, an allegation which has also been made in other similar cases brought to the attention of the Governing Body of the ILO as part of the follow-up to the complaint made under article 26, the Committee urges the Government to increase the budget for protection arrangements for members of the trade union movement so that protected persons do not personally incur any expense as a result.