Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 388, Mars 2019

1. 362. The complaint is contained in three communications from the Guatemalan Union, Indigenous and Peasant Movement (MSICG) dated 3 June and 18 September 2017 and 31 January 2018.
2. 363. The Government sent its reply in four communications dated 21 August and 8 December 2017, 29 May 2018 and 28 January 2019.
3. 364. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 365. In its three communications dated 3 June and 18 September 2017 and 31 January 2018, the MSICG alleges acts of interference, harassment and coercion by the enterprise, and to some extent by a trade union under the employer’s control, obstruction of the right to organize, criminal prosecution of union leaders, bias on the part of the Public Prosecutor’s Office and violations of due process.
2. 366. In its communication of 3 June 2017, the complainant organization states that on 20 October 2015 the Workers’ Union of the Santo Tomás de Castilla Free Industry and Trade Zone (SINTRAFE) was established, with its support. It points out that before SINTRAFE was established, the only union operating in the Santo Tomás de Castilla Free Industry and Trade Zone (hereinafter: the enterprise) was a union under the employer’s control, which had full freedom to oblige other workers to join it.
3. 367. The complainant indicates that on 5 January 2016 the Ministry of Labour and Social Welfare (hereinafter: Ministry of Labour) granted official registration to SINTRAFE and that from about 3 March 2016 a document began to circulate at the enterprise reportedly containing an appeal against the registration of SINTRAFE on the grounds that: (i) the union members had provided false documentation for establishing the union; (ii) Mr Exon Eduardo Lainfiesta Perdomo and Mr Jonnathan Christian Heimen Benítez, two workers at the enterprise whose names and signatures appear in the union’s act of constitution, claimed not to have signed the act or given their consent, and so they filed a complaint with the Public Prosecutor’s Office; (iii) after learning of these irregularities, Mr Juan José Merlo Llanes, a SINTRAFE member whose name also reportedly appeared in the act of constitution, resigned definitively from the union; and (iv) the consent of other SINTRAFE founder members was vitiated.
4. 368. The complainant organization indicates that the appeal against the registration was devised by the legal representative of the enterprise in order to prevent the establishment of a new trade union at the enterprise. Moreover, it objects that since the registration of SINTRAFE, the enterprise, and to some extent the union under the employer’s control, launched a campaign of harassment against the workers at the enterprise, seeking to discourage them from joining the new union; and that the enterprise engaged in coercion and harassment of SINTRAFE leaders and members, threatening them with criminal prosecution to make them resign from the union and declare that they did not sign the union’s act of constitution. Furthermore, the complainant alleges that Mr Lainfiesta Perdomo, Mr Merlo Llanes and Mr Heimen Benítez joined the union and took part in union training, in collusion with the enterprise, with the sole objective of destroying the new union; that the other union members, by sworn statements, contradicted those workers’ statements; and that neither Mr Lainfiesta Perdomo nor Mr Merlo Llanes made any reference in their resignation to supposedly illegal action by the union.
5. 369. The complainant organization states that on 10 June 2016 the Ministry of Labour, in Administrative Decision No. 160-2016, dismissed the appeal filed by the enterprise, and this decision was challenged by the enterprise on 29 September 2016 in the Labour and Social Welfare Court of First Instance (hereinafter: Labour Court) in the department of Izabal. Firstly, the complainant indicates, in response to the appeal filed by the enterprise on 22 March 2016, that SINTRAFE filed a criminal complaint with the Public Prosecutor’s Office against the legal representative of the enterprise and the above-mentioned workers for offences of falsification and coercion. Secondly, it denounces the criminal prosecution to which four SINTRAFE leaders were subjected: on 18 October 2016 – seven months after the criminal complaint filed by the union against the legal representative of the enterprise and the two workers referred to above – the enterprise filed a complaint against union leaders Mr Raúl Chávez Sánchez (SINTRAFE general secretary), Mr Tomás Lares López (labour and disputes secretary), Ms Nora Baibely Aquino López (records and agreements secretary) and Mr Elvin Antonio Godoy Berganza (organization and publicity secretary), accusing them of falsification with regard to the act of constitution, despite the fact that the authority to establish such a deed lay with a person other than the union leaders.
6. 370. As regards the union’s complaint against the legal representative and the two workers referred to above, the complainant organization indicates that: (i) it specifically stated that the complaint should not be referred to the Special Investigation Unit for Crimes against Trade Unionists because it considered that the unit’s prosecutor was biased against complaints filed by the MSICG; (ii) the Public Prosecutor’s Office, disregarding the complainant’s request, referred the complaint to the above-mentioned unit; (iii) the unit’s prosecutor held onto the complaint until 12 December 2016 without taking any action, thereby giving time for the criminal complaint filed by the enterprise on 18 October 2016 against four SINTRAFE leaders to be admitted for processing; (iv) when the complaint was referred to the Investigation Unit for Discrimination Offences, the plaintiffs, because of the court orders preventing them from leaving their area resulting from the criminal prosecution filed by the enterprise against four SINTRAFE leaders, could not travel to Guatemala City to submit their statements; and (v) they allege unlawful action by the prosecutor in covering up and ensuring impunity for the perpetrators and instigators of the offences committed against the trade unionists.
7. 371. The complainant organization also reports irregularities in the judicial proceedings for the four SINTRAFE leaders, making the following allegations: (i) that the complaint filed by the enterprise was processed extremely quickly, by comparison with the complaint filed by the union, in that the courts usually take over a year to grant a hearing and in the present case there was only one month between the date the hearing was requested (18 August 2017) and the date the hearing was held (18 September 2017); (ii) that during the hearing of 18 September 2017 at the Criminal Court (of First Instance) for Drug Trafficking Offences and Environmental Crimes in the department of Izabal, the judge interrupted and prevented the defence counsel, in a totally biased manner, from presenting his arguments and conducting his technical defence, and ordered that the union leaders be placed in temporary custody; (iii) that the judge also considered it lawful that the Public Prosecutor’s Office had not previously informed the union leaders of the existence of criminal proceedings against them and that they had not been summoned to submit a statement, a situation which is contrary to section 334 of the Code of Criminal Procedure, which establishes that on no account shall the Public Prosecutor’s Office bring charges before giving the accused the opportunity to make a statement; (iv) that the accused were not given a copy of the case file, and this affected their right of defence; and (v) that the judge allegedly allowed the enterprise to intervene as a joint plaintiff with the Public Prosecutor’s Office, on the grounds that the enterprise had suffered serious financial losses – amounting to more than 500,000 quetzales (GTQ) – as a result of the union being established.
8. 372. Alongside these actions, the enterprise allegedly called for the termination of the employment contract of the SINTRAFE labour and disputes secretary, Mr Tomás Lares López, despite the fact that his union term of office ended on 28 February 2018, which meant that he could not be dismissed without a valid reason. This case is pending in the Labour Court in the context of socio-economic collective dispute No. 132-2002. In addition, the legal representative of the enterprise reportedly brought criminal proceedings against the same leader for defamation, on account of statements made in the social media, and the complainant organization indicates that the complaint was admitted for processing by the Criminal Court for Drug Trafficking Offences and Environmental Crimes, even though the conditions for instituting legal proceedings had not been met.
9. 373. Furthermore, the complainant alleges to have been the victim of extortion, in that, just after the four leaders had gone to the Criminal Rehabilitation Centre in Puerto Barrios on 18 September 2017, the MSICG office began to receive calls from a person identified as a representative of the prison sector to which Mr Lares López had been transferred, demanding a deposit of GTQ75,000, otherwise the union leader would be “dispatched to the other side”, in other words, he would be murdered, and so the complainant was obliged to make this payment. This incident was reported to the International Commission against Impunity in Guatemala that same day but no investigation into these events has been conducted so far.
10. 374. On 26 September 2017, noting violations of the fundamental rights of the trade union leaders, the Office of the High Commissioner for Human Rights in Guatemala managed to arrange a review hearing and for temporary custody to be replaced by the following measures: (i) obligation to appear every 30 days before the local magistrate in order to sign the register of attendance; (ii) prohibition on leaving the country; (iii) prohibition on the consumption of alcoholic beverages; (iv) prohibition on frequenting locations dispensing alcoholic beverages; (v) house arrest, with movement restricted to the department of Izabal; and (vi) prohibition on interaction with witnesses and plaintiffs.
11. 375. According to the complainant, these restrictive measures resulted since 26 September 2017 in the four union leaders being barred from the enterprise, on the pretext that Mr Lainfiesta Perdomo and Mr Heimen Benítez were working there and that the court had forbidden the leaders to have any contact with witnesses. Furthermore, the complainant reports that since 18 September 2017 the four union founder members have not been paid their wages and other benefits and that other SINTRAFE leaders and members have been subjected to constant harassment by the employer, who has been threatening to dismiss them if they do not go to the Public Prosecutor’s Office and make statements against the union, with the enterprise even driving them to the Public Prosecutor’s Office in its own vehicles.
12. 376. Lastly, the complainant states that in view of the refusal of the Public Prosecutor’s Office to supply a copy of the criminal complaint and all file material against them so that the four union leaders could exercise their right of defence, the union leaders submitted a memorandum to the Public Prosecutor’s Office on 24 October 2017 denouncing all the violations which it claimed this authority had committed, including obstacles to the right of defence and violations of due process, and indicating that the supposedly biased action of the Public Prosecutor’s Office was aimed at securing the imprisonment of the union leaders. According to the complainant, no reply has been received to date from the Public Prosecutor’s Office, nor has a copy of the criminal complaint been received. Since it considers that the present case constitutes clear criminalization by the Government of the exercise of freedom of association, the complainant draws the Committee’s attention to the serious and urgent nature of the present case.

B. The Government’s reply

1. 377. The Government sent its reply in communications dated 21 August and 8 December 2017, 29 May 2018 and 28 January 2019.
2. 378. The Government indicates with regard to the application to overturn Ministry of Labour Administrative Decision No. 160-2016, which dismisses the appeal filed by the enterprise, that: (i) the legal representative of the enterprise filed the above-mentioned appeal with the Labour Court on 29 September 2016; (ii) the Labour Court admitted the application and fixed a hearing for the purpose of oral proceedings on 21 June 2017; (iii) this hearing was suspended three times at the request of the parties; (iv) at the hearing of 25 May 2018, the Labour Court noted the non-appearance of SINTRAFE, through its legal representative, the State of Guatemala, the Ministry of Labour and the Labour Inspectorate, despite the fact that they had been legally notified, and at the hearing the order was given to proceed with the evidentiary report; and (v) the Government of Guatemala indicates that the Labour Court will issue a ruling after notification of the decisions concerning the evidence on behalf of the trade union.
3. 379. The Government indicates, with regard to the complaint made by SINTRAFE against the representative of the enterprise and the two above-mentioned workers for document falsification and coercion, that: (i) the complaint was originally due to be examined by the Special Investigation Unit for Crimes against Trade Unionists but on account of the objection from the plaintiffs the case was transferred to the Investigation Unit for Discrimination Offences; (ii) the aforementioned unit conducted a preliminary analysis of the file to establish whether the material facts would be liable to “own motion” prosecution or to prosecution on application, given that only the latter would apply to certain material facts; (iii) the plaintiffs did not attend in order to present their witness statement, having indicated that they were party to criminal proceedings and, since they were subject to house arrest in lieu of custody, were prevented from leaving the department of Izabal; (iv) the above-mentioned investigation unit planned to travel on 6 and 7 December 2017 to Puerto Barrios in Izabal in order to take the plaintiffs’ witness statement; and (v) the prosecutor in Puerto Barrios in Izabal was requested to provide a detailed report on case No. MP282-2016-5254 to determine whether Mr Lares López and Mr Godoy Berganza were indeed restricted in their freedom of movement and to establish whether there was a connection between the criminal prosecution against them and the present case.
4. 380. As regards the criminal proceedings against the four trade union leaders, the Government indicates that: (i) the enterprise filed a complaint for falsification with the Criminal Court for Drug Trafficking Offences and Environmental Crimes in the department of Izabal; (ii) the first hearing was fixed for 18 September 2017 and the union leaders were made party to the proceedings for falsification of documents; (iii) during the hearing, an order was issued to place the four leaders in temporary custody since they were considered a flight risk, whereupon they were sent to the Criminal Rehabilitation Centre in Puerto Barrios in the department of Izabal; (iv) on 26 September 2017, the review hearing was held and it was decided to replace temporary custody with five restriction orders (obligation to appear every 30 days before the local magistrate in order to sign the register of attendance; prohibition on leaving the country; prohibition on the consumption of alcoholic beverages and on frequenting locations dispensing alcoholic beverages; house arrest, with movement restricted to the department of Izabal; and prohibition on interaction with witnesses and plaintiffs); (v) on 15 January 2018, the intermediate hearing was held and an informal disposition was established in favour of the leaders Mr Chávez Sánchez, Mr Godoy Berganza and Ms Aquino López (a release from the judicial process whereby the Public Prosecutor’s Office is authorized to refrain from conducting criminal proceedings on the grounds that the public interest or public safety is not seriously affected and after one year the criminal proceedings are dropped), thereby removing all restriction orders imposed on 26 September 2017; (vi) with regard to Mr Lares López, the intermediate hearing was held on 10 July 2018 and the order was given to commence proceedings for falsification of documents or, alternatively, for falsification of facts; and (vi) on 2 August 2018, an evidentiary hearing was held and a subsequent hearing was fixed for 8 March 2019 in the Criminal Court for Drug Trafficking Offences and Environmental Crimes in the department of Izabal.
5. 381. As regards the allegation that the four union leaders who were the subject of criminal proceedings for falsification of documentation were barred from the enterprise and that the enterprise refused to pay wages or other benefits to the leaders, the Government forwards the enterprise’s reply, which states that: (i) Ms Aquino López no longer works at the enterprise, having voluntarily submitted her resignation, which took effect on 2 November 2018, and she has received the appropriate wages and benefits; (ii) Mr Chávez Sánchez and Mr Godoy Berganza are still employed at the enterprise; and (iii) Mr Tomás Lares López is legally barred from the enterprise on the grounds that he is still the subject of criminal proceedings for falsification of documents, and since he is subject to restriction orders he is forbidden to have any contact with Mr Lainfiesta Perdomo and Mr Heimen Benítez, who are working at the enterprise.
6. 382. Lastly, as regards the judicial authorization requested by the enterprise to terminate the employment contract of Mr Tomás Lares López, the Government indicates that this application was dismissed on 18 April 2016 by the Labour Court and ordered to be shelved.

C. The Committee’s conclusions

1. 383. The Committee observes that the present case is concerned with acts of interference, harassment and coercion by the enterprise (and to some extent by a trade union under the employer’s control), obstruction of the right to organize, criminal prosecution of four union leaders, bias on the part of the Public Prosecutor’s Office and violations of due process.
2. 384. The Committee notes that, on 20 October 2015, the Workers’ Union of the Santo Tomás de Castilla Free Industry and Trade Zone (SINTRAFE), a union affiliated to the complainant organization, was established. It also notes the complainant’s indications that: (i) before SINTRAFE was established, a union under the employer’s control was the only union at the enterprise; (ii) after SINTRAFE was established, the enterprise began to circulate a document citing the existence of an appeal against the union’s registration on account of the alleged forgery of signatures in the act of constitution; and (iii) this judicial action was followed by acts of interference, coercion and threats of criminal prosecution against SINTRAFE leaders and members aimed at forcing them to resign from the union.
3. 385. The Committee also observes the complainant’s allegations concerning the above-mentioned appeal that: (i) the latter was devised by the legal representative of the enterprise on 7 March 2016 in order to discourage workers from joining SINTRAFE; (ii) Mr Lainfiesta Perdomo, Mr Merlo Llanes and Mr Heimen Benítez joined the above-mentioned trade union and took part in union training with the purpose of destroying the new union; (iii) on 10 June 2016, the Ministry of Labour and Social Welfare (Ministry of Labour), in Administrative Decision No. 160-2016, dismissed the appeal filed by the enterprise; (iv) on 29 September 2016, the enterprise challenged the administrative decision in the Labour and Social Welfare Court of First Instance (Labour Court); and (v) a ruling on the challenge is pending.
4. 386. As regards the application to overturn Administrative Decision No. 160-2016 of the Ministry of Labour, which dismissed the appeal filed by the enterprise against the registration of the trade union, the Committee observes that, according to updated information from the Government, the Labour Court admitted the application, issued instructions at the hearing of 25 May 2018, which was attended only by the enterprise, to proceed with the evidentiary report and once the evidentiary phase was completed the court would issue a ruling. While noting that the court’s decision is still pending, the Committee notes with concern that the Government has not sent its observations on the allegations of interference, coercion and threats of criminal prosecution directed at SINTRAFE leaders and members working at the enterprise. Recalling that any coercion of workers or trade union officers to revoke their union membership constitutes a violation of the principle of freedom of association, in violation of Convention No. 87 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1198], ratified by Guatemala, the Committee hopes that the Government will conduct an impartial investigation into the reported occurrences and will inform the Committee of its findings. It also requests the Government to inform it of the final ruling on the application to overturn Administrative Decision No. 160-2016.
5. 387. As regards the allegations concerning the violation of due process and bias shown by the Public Prosecutor’s Office, the Committee observes that these related to the complaint filed by the trade union against the legal representative of the enterprise and two workers for coercion and falsification of documents; and also to the complaint filed by the legal representative of the enterprise against four SINTRAFE leaders for falsification of documents.
6. 388. The Committee notes, with regard to the criminal complaint filed by the trade union on 22 March 2016 for falsification of documents and coercion, that the complainant considers that: (i) even though the union asked for the complaint not to be referred to the Special Investigation Unit for Crimes against Trade Unionists, since it considered that its prosecutor was not impartial, the complaint was nonetheless referred to that unit, which held onto it until 12 December 2016; (ii) this course of action enabled the criminal complaint filed by the enterprise to be admitted for processing; and (iii) when the complaint was referred to the Investigation Unit for Discrimination Offences seven months later, the four SINTRAFE leaders were unable to go to Guatemala City to present their statements on account of the restrictions on movement resulting from the complaint filed by the enterprise.
7. 389. As regards the criminal complaint filed by the enterprise against the four trade union leaders, the Committee observes that the complainant organization alleges that: (i) this criminal complaint was processed extremely quickly, by comparison with the complaint filed by the union; (ii) during the hearing of 18 September 2017 at the Criminal Court (of First Instance) for Drug Trafficking Offences and Environmental Crimes in the department of Izabal, the judge interrupted and prevented the defence counsel, in a totally biased manner, from presenting his arguments and conducting his technical defence, and on the same day ordered that the union leaders be placed in temporary custody; (iii) the union leaders were not informed of the existence of criminal proceedings against them, they were not summoned to submit a statement before the hearing was held, and they were not provided with a copy of their case file; and (iv) the judge reportedly allowed the enterprise to intervene as a joint plaintiff.
8. 390. The Committee notes the Government’s indication regarding the criminal complaint filed by the trade union that the Investigation Unit for Discrimination Offences has already conducted a preliminary analysis of the complaint so as to establish whether the material facts would be liable to “own motion” prosecution or to prosecution on application; the investigation unit planned to go to the department of Izabal on 6 and 7 December 2017 to take the plaintiffs’ statements; and the prosecutor in Puerto Barrios was requested to provide a detailed report on the case to determine whether the plaintiffs’ freedom of movement was restricted and whether there was a connection between the criminal prosecution and the case.
9. 391. The Committee further notes, with respect to the criminal proceedings brought by the enterprise against the four SINTRAFE leaders, that: (i) at the first hearing, fixed for 18 September 2017, proceedings were instituted against the leaders for falsification of documents and they were placed in temporary custody since they were considered a flight risk; (ii) on 26 September 2017, during the review hearing relating to restriction orders, it was decided to replace temporary custody with five restriction orders, including house arrest; (iii) on 15 January 2018, an order was issued to release Mr Chávez Sánchez, Mr Godoy Berganza and Ms Aquino López from the judicial process, thereby lifting all applicable restriction orders; (iv) with regard to Mr Lares López, on 10 July 2018 an order was issued to institute proceedings for falsification of documents or, alternatively, for falsification of facts; (v) on 2 August 2018, an evidentiary hearing was fixed, with the next hearing in the Criminal Court for Drug Trafficking Offences and Environmental Crimes in the department of Izabal due on 8 March 2019; and (vi) in a memorandum of 24 October 2017 addressed to the Public Prosecutor’s Office, the union leaders denounced all the violations allegedly committed by that Office, they requested a copy of the criminal complaint filed by the enterprise and requested an investigation into the allegedly biased action of the Public Prosecutor’s Office in the case.
10. 392. In the light of the foregoing, the Committee notes that: (i) the criminal complaint filed by SINTRAFE on 22 March 2016 is still at the investigation stage; (ii) the criminal complaint filed by the enterprise on 18 October 2016 is at the final stage of the criminal proceedings; (iii) the Government has not provided any information on the alleged violations of due process and of the right of defence; (iv) the Public Prosecutor’s Office has not conducted any investigation into its biased action in the present case, despite the union’s written request of 24 October 2017; and (v) to date, over 15 months after Mr Tomás Lares López was placed in temporary custody for the first time, the judicial status of this union leader has not been defined. The Committee recalls that detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority [see Compilation, op. cit., para. 167]. The Committee therefore requests the Government to send a detailed reply as soon as possible regarding the alleged violations of due process and of the right of defence, to ensure that Mr Tomás Lares López enjoys all judicial guarantees and his full right of defence in the criminal proceedings against him, and to inform the Committee of the final ruling of the Criminal Court for Drug Trafficking Offences and Environmental Crimes in the department of Izabal relating to the above-mentioned union leader. In addition, the Committee requests the Government to ensure that the investigation into the criminal complaint filed by the union, relating to alleged falsification and coercion, is conducted promptly and, if anti-union motives are established, that appropriate compensation is awarded.
11. 393. As regards the alleged acts of extortion and threats against the union leaders during their detention, the Committee notes that the MSICG filed a complaint with the International Commission against Impunity in Guatemala but this has not given rise to any investigation. Observing that the Government has not sent its observations on this matter, and since it does not know whether the union or the complainant has filed any other complaints, the Committee invites the complainant to send its detailed observations on this matter and requests the Government to provide information on any criminal complaint filed in relation to the reported occurrences.
12. 394. As regards the judicial authorization requested by the enterprise to terminate the employment contract of the union leader Mr Tomás Lares López, the Committee observes that this was dismissed by the Labour Court on 18 April 2016 and was shelved, and so the Committee will not pursue its examination of this allegation. As regards the criminal complaint for defamation alleged by the complainant to have been filed with the Criminal Court for Drug Trafficking Offences and Environmental Crimes against the same union leader, the Committee, observing that the Government has not provided any information on this matter, requests the Government to send information as soon as possible on the charges brought against Mr Lares López and on the status of the complaint.