Informe provisional - Informe núm. 275, Noviembre 1990

1. 364. The Committee examined this case at its May 1990 meeting and submitted an interim report (paras. 527-561 of its 272nd Report) which the Governing Body approved at its May-June 1990 Session. Since then, the Government has sent comments, observations and information on this case in a communication of 23 August 1990.
2. 365. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 366. The allegations of the International Confederation of Free Trade Unions (ICFTU) still outstanding after the Committee examined this case at its May 1990 meeting concerned death threats, abductions, forced disappearances, torture and violent deaths of trade unionists, as well as acts of repression by the authorities against strike movements. They also concerned the Government's refusal to recognise trade union executives or to take steps to protect trade unionists against acts of anti-union discrimination by employers.
2. 367. As regards the allegations of abductions, forced disappearances, torture and violent deaths of trade unionists, the Committee noted with deep concern that the Government had not sent any information or observations. It drew the Government's attention to the fact that a climate of violence such as that surrounding the murder or disappearance of trade union leaders constitutes a serious obstacle to the exercise of trade union rights and that such acts require severe measures to be taken by the authorities.
3. 368. In view of the seriousness of the complainant's allegations, the Committee urged the Government to set up an independent judicial inquiry in order to ascertain fully the facts, determine responsibilities, punish those responsible and especially to prevent the repetition of such actions. It also urged the Government to keep it informed of the results of such inquiries, in particular concerning the murder of José Rolando Pantaléon, a trade unionist of the STECSA (Coca-Cola) enterprise, on 2 July 1989; the murder of nine peasants in Alta Verapaz, on 22 August 1989; the murder of Carlos Humberto Rivera, a teacher trade unionist, on 9 September 1989; the murder of Estánislao García y García, a member of the Independent Agricultural Union, on 17 September 1989; the murder of José Leon Segura de la Cruz, an officer of the Electrical Workers' Union, on 27 September 1989; and the death of peasants in San Marcos and the department of El Progreso on 13 and 14 September 1989, and of peasants in the department of Quetzaltenango.
4. 369. As regards the allegations of ill-treatment and punishment of workers for having participated in strikes, the Committee also noted that the Government had not supplied information on these allegations. It recalled, none the less, that trade unionists, like other persons, should enjoy the guarantees afforded by due process of law in accordance with the principles enunciated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights. It therefore requested the Government to state whether an inquiry had been instituted into the case of the teacher Maritza Hurtarta de Ruiz, alleged to have sustained a fracture of the spine after being beaten in prison premises, and of the injuries allegedly inflicted on some 40 striking teachers by the security forces on 3 July 1989.
5. 370. As regards the numerous allegations of death threats received by several trade union officers, the Committee noted that according to the Government itself, disputes secretary Mr. E.M. Gomez was threatened with death and compelled to take refuge in the premises of the mutual support group (GAM), then compelled to go into exile, while the Central Organisation of Workers of Guatemala stated that it too had received threats. The Committee therefore requested the Government to set up an inquiry into all of the complaints presented by trade unionists in order to ascertain the facts, punish those responsible and prevent a repetition of such actions.
6. 371. At its May-June 1990 Session the Governing Body approved the following recommendations of the Committee:
   • (a) The Committee notes with concern the seriousness of the allegations presented by the complainant in this case concerning, inter alia, death threats, abductions, forced disappearance and torture and violent death of trade unionists. It draws the Government's attention to the fact that a climate of violence and intimidation constitutes a serious obstacle to the exercise of trade union rights.
   • (b) The Committee notes with deep concern that the Government has not yet provided information regarding the acts of violence denounced by the complainant. It urges the Government to set up independent judicial inquiries to ascertain the facts, punish those responsible and prevent the repetition of such actions, and to keep it informed of the results of such inquiries concerning allegations of murder and disappearance of workers referred to by name by the complainant.
   • (c) The Committee also regrets that the Government has not sent information regarding the ill-treatment and punitive measures said to have been taken against workers who took part in strikes. It requests the Government to inform it whether an inquiry has been set up into the case of the teacher Maritza Hurtarta de Ruiz, alleged to have sustained a fracture of the spine after being beaten in prison premises and injuries said to have been inflicted on some 40 striking teachers by the security forces on 3 July 1989 and, if so, to communicate the results of such inquiries.
   • (d) The Committee further notes with concern that the Government admits that death threats have been made against trade unionists. The Committee urges the Government to take immediate measures to ensure that the physical integrity of trade union members and officers is protected. It requests the Government to carry out an inquiry into all of the complaints presented by trade unionists in order to ascertain the facts, punish those responsible and prevent the repetition of such actions.
   • (e) The Committee also notes that the Government admits that a labour inspector was denied access to an enterprise in order to notify an employer of the immunity of trade union officers. The Committee trusts that the Government will give firm instructions to enable the labour inspectorate to perform its functions fully and to guarantee the protection of workers from anti-union discrimination.

B. The Government's reply

1. 372. In its communication of 23 August 1990 the Government states that the Ministry of Labour shares the concerns expressed by the Committee on Freedom of Association over the facts referred to in its recommendations, but regrets that the parties who presented their complaints in an international forum have failed to bring their complaints before the national authorities and to co-operate by submitting the necessary evidence.
2. 373. The Government also endorses the Committee's affirmation that violence and intimidation constitute obstacles to the exercise of trade union and other rights protected by Guatemalan legislation, and affirms that in spite of the limited economic resources available to it, it will endeavour to maintain the peace and protect the security of all inhabitants of the country, without distinction whatsoever.
3. 374. In this connection, the Government refers to a number of reforms of the criminal procedures that are currently under way, namely: the institution of an oral and public judgement; a change in the preliminary investigation system which will authorise the Public Ministry to lead the inquiry, with the police serving as an auxiliary support; the assignment to judges of the task of deciding on an interlocutory basis, even during the preliminary investigation, whether any acts carried out by the police of the Public Ministry during the inquiry undermine individual guarantees concerning the human rights of the party or parties in question; the creation of a case selection system in order to lighten the excessive burden on the criminal courts through rational means which will ensure that important cases are judged efficiently, taking into account the limited human and material resources available to the country. The Government concludes by explaining that these reforms are in keeping with the recommendations made by a United Nations counsellor and shared by the Inter-American Human Rights Commission.
4. 375. Moreover, the Government states that in accordance with criminal procedures, an inquiry has been instituted into the acts of violence mentioned in the complaint, to the extent that they have been denounced or come to the knowledge of judicial authorities, and that it hopes that the corresponding facts will be clarified.
5. 376. As regards Mrs. Maritza Hurtarta Guillen de Ruiz, the Government explains that on 9 August 1989 a group of teachers, including the person in question, burst into a public building in the city of Antigua Guatemala. This building belonged to the Ministry of National Education. The group occupied the premises and detained the officials and public employees working there. As a consequence of this anti-social behaviour, the local justice of the peace signed a warrant for the arrest of Mrs. de Ruiz, for resisting arrest, contempt of public security forces and disorderly behaviour. The teacher in question sought to evade arrest by fleeing over a rooftop from which she accidentally fell, suffering certain injuries. Therefore, the Government refutes the version of the complainant, according to which this teacher was mistreated upon her arrest and which, according to the Government, is disproved by the fact that this person never filed a complaint in this connection.
6. 377. As regards the teachers who took over the third floor of the National Palace, the Government explains that on 3 July 1989, at 7 p.m., according to information it received from the national police, a large group of teachers was discovered at the main entrance to the offices of the Ministry of National Education situated on the third floor of the National Palace. This group of teachers caused some commotion and insulted the Minister. Given the late hour and the fact that the working day had ended at 4.30 p.m., the authorities first requested and then ordered the group to vacate the premises. Nevertheless, the group failed to obey and continued its disruptive behaviour. Therefore, the national police proceeded to arrest 23 persons and brought them before the competent court within the prescribed time periods. The court found them guilty of disturbing the peace and sentenced them accordingly. Since their arrest, the persons in question have not been subjected to any ill-treatment, as evidenced by the fact that the court pronounced a nonsuit in the appeal they filed.
7. 378. In addition, the Government states that it has already agreed to examine the allegations of death threats against trade unionists, but that the persons concerned have submitted no complaints to the public authorities and appear to have decided to leave the country. In these circumstances, and in the absence of the presumed victims, any inquiry is very difficult, if not impossible. The Government reaffirms that the police and judicial authorities stand ready to receive complaints from the persons concerned and to undertake the corresponding investigations.
8. 379. As regards the recognition of the Quetzal Port Enterprise Trade Union, the Government states that the question is still pending because the required formalities have not yet been fulfilled.
9. 380. Lastly, as regards the threats allegedly received by the Mutual Support Group (GAM), the Government states that according to the police several investigators have been appointed to look into this matter, but that they have been able to meet only once with a leader of this Group; subsequently, this person has refused to receive the investigators, in spite of several visits they have made to the Group's premises. In its report the police insisted on the need to advise complainants to submit their complaints in proper form and to lend all necessary co-operation.
10. 381. The Government concludes by declaring that it is very concerned at the violence which is sweeping over the country and which, unfortunately, is not directed only against trade union leaders and students, but also affects all sections of the population. The Government gives the assurance that state bodies within the limits of their competence are using all means at their disposal to put a halt to this violence, which is designed to promote instability and undermine confidence in the country's lawful administration.

C. The Committee's conclusions

1. 382. As regards the allegations of violence against 40 or so striking teachers by law enforcement forces on 3 July 1989, the Committee notes that the respective versions of the complainant and of the Government are contradictory.
2. 383. According to the complainant, following a labour dispute and a teachers' strike which lasted 180 days in 1989, élite security forces on 3 July 1989 violently dislodged and wounded some 40 teacher trade union leaders who were peacefully occupying the third floor of the National Palace. According to the complainant organisation, this action was aimed at securing the negotiation of teachers' economic and social demands, following the Government's refusal to enter into a dialogue with them.
3. 384. For its part, the Government confirms that the teachers occupied the third floor of the National Palace on 3 July 1989, but it states that these teachers were found at the door of the office of the Minister of National Education at 7 p.m., after the offices had closed, and that they were insulting this Minister. According to the Government, the police instructed the teachers to vacate the premises and, when they failed to do so, it proceeded to arrest 23 persons and turned them over to the courts. However, the Government formally denies that the persons in question were mistreated by law enforcement personnel.
4. 385. As regards the alleged torture of the teacher Maritza Hurtarta de Ruiz on 9 August 1989, the Committee notes that, according to the complainant, this teacher suffered a fracture of the spine after having been beaten while in prison.
5. 386. The Government, on the other hand, states that this teacher, along with other persons, burst into an office of the Ministry of National Education. It states that this group, composed of teachers, took over the premises and detained a number of officials, and that the teacher in question was then charged by the Justice of the Peace with resisting arrest, contempt of law enforcement personnel and disorderly behaviour. After a warrant for her arrest was issued, she sought to evade arrest by fleeing over a rooftop from which she accidentally fell.
6. 387. Lastly, and still in connection with the teaching profession, the Government has not replied to the ICFTU's allegation that the leader of the teachers' strike, Carlos Humberto Rivera, was arrested at his home on 9 September 1989 while he was washing his car and carried away by armed men travelling in a vehicle bearing the number-plate P-152245 which, according to the complainant, is very similar to the plates used by the army; he was found dead the following day, along with the bodies of three student leaders, all showing signs of torture.
7. 388. The Committee deeply regrets that a labour dispute which, according to the complainant, lasted 180 days, ended in violence and arrests and, according to the allegations, in violent deaths.
8. 389. It recalls that it has always considered strikes as an essential means available to workers and their organisations, including organisations of teachers, to promote their economic and social interests. Consequently, the Committee considers that the Government should have entered into dialogue with the striking teachers who, it seems, were demanding only to negotiate their economic and social demands.
9. 390. Consequently, the Committee requests the Government to supply as much information as possible on the outcome of the labour dispute which broke out in the teaching sector in 1989. It also requests the Government to supply information concerning the alleged death of the leader of the teachers' strike, Carlos Humberto Rivera, on 9 September 1989.
10. 391. Moreover, while noting the general information furnished by the Government and its pledge to endeavour to respect human rights, the Committee regrets that the Government has supplied no information whatsoever concerning the other extremely serious allegations of the complainant. The Committee urges the Government to institute independent judicial inquiries into the alleged assassination, on 2 July 1989, of a member of the workers' trade union of the Embotelladora Central SA "STECSA" (Coca-Cola) enterprise, José Rolando Pantaléon, who was kidnapped at 10 a.m. while leaving his home, and found at 4 p.m., his body riddled with bullets and disfigured from torture; the murder of nine peasants in Alta Verapaz on 22 August 1989; the murder of an activist of the Independent Agricultural Trade Union, Estanislao Garcia y Garcia, on 17 September 1989; the murder of the general secretary of the National Electricity Institute Trade Union, José León Segura de la Cruz, on 27 September 1989 at 5 a.m. in the department of Chiquimula, who was alleged to have been shot by two unknown individuals who fired at him while he was leaving his home for work; the death of peasants at San Marcos, in the department of El Progreso, on 13 and 14 September 1989, as well as that of peasants in the department of Quetzaltenango.
11. 392. With regard to the non-recognition of the Quetzal Port Enterprise Trade Union, the Committee notes that the Government merely states the question is still pending owing to the organisation's failure to meet certain required formalities.
12. 393. In this connection, the Committee recalls that, according to the complainant, the Minister of Labour has failed to become involved or to contribute to the settlement of a labour dispute and strike which broke out on 10 July 1989 in the port of Quetzal.
13. 394. The Committee notes with regret that, as alleged by the complainant and confirmed by the Government itself, the competent authorities have still not granted legal personality to this trade union.
14. 395. The Committee wishes to emphasise that under Article 7 of Convention No. 87, the acquisition of legal personality by workers' and employers' organisations should not be made subject to conditions of such a character as to restrict the application of the provisions of the Convention, and that in any case, under Article 2, the principle of freedom of association guarantees to workers, without any distinction whatsoever, the right to establish organisations of their own choosing without prior authorisation.
15. 396. Therefore the Committee requests the Government to furnish full information on the outcome of the labour dispute in the port of Quetzal and on the granting of legal personality to the workers' trade union in this port.
16. 397. Finally, concerning the allegations of death threats which have led certain trade unionists to choose exile rather than risk their lives by staying in the country, the Committee takes note of the Government's statements according to which the police has considered it necessary to insist that persons who complain of having received death threats must present their complaints in proper form and must lend their full co-operation to any inquiry into the matter.
17. 398. Nevertheless, the Committee points out that, given the risk of reprisal faced by persons who complain of death threats directed at them, while recourse to an internal judicial procedure, whatever its outcome, is certainly an avenue which should be taken into consideration, it has always considered that the nature of its responsibilities means that its competence for examining allegations is not subject to the exhaustion of national appeals procedures (see 234th Report, Case No. 1212 (Chile), para. 565). In fact, the Committee recalls that facts imputable to individuals do bring into play the State's responsibility owing to the State's obligation to prevent violations of human rights. Consequently, governments should endeavour to meet their obligations regarding the respect of individual rights and freedoms, as well as their obligation to guarantee the right to life of trade unionists.
18. 399. Consequently, the Committee again urges the Government to undertake complete inquiries into the above-mentioned allegations of death threats and to keep the Committee informed of the outcome of these inquiries.