Solicitud directa (CEACR) - Adopción: 1994, Publicación: 81ª reunión CIT (1994)

The Committee notes the Government's first report.

Articles 1 and 2, paragraph 1.

1. The Committee notes the provisions of the Constitution concerning freedom and equality and freedom of action (articles 4 and 5) which provide, respectively, that no one may be subjected to slavery or to any other condition which impairs his dignity, and everyone has the right to do what is not prohibited by law. The Committee also notes that section 2 of Government Accord No. 828-84 categorically prohibits acts of any nature whatsoever aimed at imposing forced labour, as laid down in Convention No. 105. The Committee also notes that article 46 of the Constitution establishes the general principle that, with regard to human rights, the treaties and Conventions accepted and ratified by Guatemala take precedence over domestic law.

The Committee observes, however, that the prohibition laid down in Government Accord No. 828-84 is confined to the cases provided for in Convention No. 105. The Government explains that this is because Convention No. 105 was ratified by Guatemala before Convention No. 29. The Committee also observes that none of the provisions defines forced labour in the terms of the Convention.

The Committee requests the Government to consider the possibility of adopting a provision containing a general prohibition of forced labour, together with a definition in line with that of the Convention.

2. Forced recruitment by the army. The Committee notes the report of the Commission on Human Rights of the United Nations Economic and Social Council concerning the human rights situation in Guatemala (E/CN.4/1993/10), paragraph 51 of which contains information on the problems of forced recruitment by the army. According to this information, the army has continued to use force to arrest young males in the street and draft them into compulsory military service, in some cases without observing the legal requirements concerning the age of the draftees.

The Committee asks the Government to provide information on the measures taken or envisaged to prevent forced recruitment by the army, which is in breach of national laws and regulations on compulsory military service and of the Convention.

3. Civilian self-defence patrols (PAC). According to the Commission on Human Rights, the expert in charge of the report once again found ample confirmation of the largely non-voluntary character of the so-called civilian self-defence patrols (paragraph 54). Paragraph 68 of the same report indicates that "Many complaints are still being received about the pressure brought to bear by the leaders of these patrols, especially on indigenous minors and peasants, to make them join their ranks, pressure which often amounts to forced recruitment by means of threats and ill-treatment".

The Committee also notes the written statement submitted to the Commission on Human Rights by the organization "Human Rights Advocates" (E/CN.4/1993/NGO/33) alleging that "the Guatemalan civil defence forces, known as the civil patrols, are groups of peasants and villagers, almost always made up exclusively of indigenous Guatemalans, organized and controlled by the army with the purported goal of combating anti-Government guerillas". It adds that "Indigenous peasant are forced to serve in the patrols, often under threat of death" and that "Fathers who are unable to patrol must send their sons in their place, even if the sons are minors. In some cases, children as young as eight are forced to patrol, and many fatal accidents have resulted".

The Committee requests the Government, in order to ensure obervance of the Convention, to take the necessary measures to end these practices whereby persons, including minors, are subjected to forced labour, and to provide information on progress made towards this end.

Article 2, paragraph 2

1. Article 2, paragraph 2(a). The Committee notes the Act constituting the Army of Guatemala (Decree No. 62-90 of 10.1.91). The Committee asks the Government to provide a copy of the laws and regulations on compulsory military service, particularly those governing the tasks assigned to recruits. The Committee notes the information contained in the report of the Commission on Human Rights (E/CN.4/1993/10, paragraph 255) to the effect that the Bill on military and social service should be enacted by the National Congress as soon as possible. The Committee asks the Government to provide a copy of the Bill as soon as it becomes law.

2. Article 2, paragraph 2(b). Under articles 135(c) of the National Constitution the rights and duties of Guatemalan citizens include working for the civic, cultural, moral, economic and social development of the Guatemalans. The Committee asks the Government to provide information on the application in practice of this provision, and on the laws and regulations issued under it, particularly as regards social service.

3. Article 2, paragraph 2(c). The Committee notes that section 47 of the Penal Code provides that the work of prisoners is compulsory and that section 48 does not exempt prisoners awaiting trial from prison labour. The Committee refers to the explanations contained in paragraph 90 of its General Survey on the Abolition of Forced Labour of 1979 and recalls that work can only be exacted from a prisoner as a consequence of a conviction and that persons awaiting trial or persons detained without trial may work at their own request on a purely voluntary basis.

The Committee asks the Government to inform it of any measures that have been taken or are envisaged to ensure observance of the Convention on this point and to provide the existing prison legislation. It also asks the Government to state which authorities are empowered to impose the penalty of imprisonment provided for in section 45 of the Penal Code.

4. Article 2, paragraph 2(d). The Committee note that under section 13 of the Public Order Act of 1965 respecting the state of emrgency, the Executive may order the services or assistance of individuals, regardless of their privileges or status, for the purpose of maintaining the operation of public utility services or persons whose services or assistance are deemed necessary. So that the Committee may ascertain the scope of this provision and ensure that its application does not go beyond the cases of force majeure within the meaning of the Convention, the Committee asks the Government to provide information on the effect given to it in practice and the regulations issued under it.

The Committee also asks the Government to indicate the circumstances in which effect has been given to section 15 of the Public Order Act which empowers the President of the Republic to restrict freedom of movement and require individuals to provide such assistance and cooperation as may be necessary to ensure more effective control of the areas affected in the event of public disaster.

5. Article 2, paragraph 2(e). The Committee notes the indication in the Government's report that certain jobs which are for the good of the community in, for example, cleaning, sewage and water mains, which are performed in the framework of the "Food for Work" programme by the members of certain communities in cooperation with the local authorities.

In order that the Committee may ascertain that such jobs fall within the exception provided for in the Convention, it asks the Government to provide information on the "Food for Work" programmes currently under way, indicating in particular the number of persons involved, the type of work and the guarantees that participation in such work is voluntary.

6. Article 25. The Committee notes section 4 of Government Accord No. 828-84 which restricts the application of the appropriate legal sanctions to persons who infringe the provisions of Convention No. 105. The Committee asks the Government to take the necessary steps to incorporate in the legislation specific provisions on the sanctions to be applied in the event of unlawful exaction of forced or compulsory labour, in accordance with the provision of Article 25 of the Convention.