Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 408, Octobre 2024

1. 414. In its previous examination of the case, the Committee presented an interim report to the Governing Body [see 383rd Report, paras 354–371, approved by the Governing Body at its 331st Session (October–November 2017)]. 
2. 415. The Government provided additional observations in communications dated 5 March and 20 April 2018, 31 January 2019, 30 December 2020, 8 January and 16 August 2024.
3. 416. 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).

Previous examination of the case

1. 417. At its November 2017 meeting, the Committee made the following recommendations [see 383rd Report, para. 371]:
   • (a) The Committee once again expresses the strong hope that the judicial challenge to the dismissal of the founding members of SITRACOGUA is resolved as soon as possible. Considering both the existence of a decision of labour inspection and the excessive delay in the resolution of the aforementioned requests for reinstatement, the Committee requests the Government to examine the ways in which effect could be given to the decision of labour inspection. The Committee requests the Government to keep it informed of any progress made in this regard.
   • (b) The Committee once again urges the Government, in consultation with the social partners, to carry out a thorough revision of the procedural rules of the relevant labour regulations to ensure that the judiciary provides appropriate and effective protection against cases of anti–union discrimination. The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to keep it informed of the outcome of the appeal lodged by the Public Prosecutor’s Office concerning the criminal complaint filed by SITRACOGUA against the executives of the sports institution.
   • (d) The Committee requests the Government to take the security measures that might be necessary should Ms García and Ms de León so request.
   • (e) The Committee once again trusts that the interventions of the various public institutions will ensure the free exercise of freedom of association and collective bargaining within the sports institution.

B. The Government’s reply

1. 418. In its communications dated 5 March and 20 April 2018, 31 January 2019, 30 December 2020, 8 January and 16 August 2024, the Government provides information in response to several recommendations by the Committee.
2. 419. Regarding recommendation (b) (thorough revision of the procedural rules of the labour regulations to ensure that the judiciary provides appropriate and effective protection against cases of anti-union discrimination), the Government indicates, in its communication of 30 December 2020, that Bill No. 5809 submitted by the Supreme Court of Justice, which provides for the approval of the Labour and Social Security Procedural Code, was received by the Congress on 17 July 2020, and is due to be presented in plenary session to the Congress of the Republic. The Government indicates in this regard that the explanatory memorandum of Bill No. 5809 states that the main areas for improvement that were considered were: the excessive length of the process; the need to increase the number of judges and auxiliary staff, with provision for the separation of the fields of labour and social security; the need to supply sufficient and adequate material resources to ensure an efficient administration of justice and the effective application of the principles of orality. In its communication of 16 August 2024, the Government indicates that the Bill was submitted to the Commission on Reforms in the Legal Sector and the Labour Commission, which are both part of the Congress of the Republic, for their respective consideration and decision. The Commission on Reforms in the Legal Sector issued, in December 2021, an unfavourable decision on grounds relating to constitutional review, the social impact of the legislation and the protection of the State. The Labour Commission has not yet issued a decision. The Government states that, if the Labour Commission issues a second unfavourable decision, the plenary session of Congress may decide to archive it, whereas if the decision is favourable, it will determine which of the two decisions will be taken into account in order to pursue the legislative process under the conditions laid down by law.
3. 420. In its communication of 11 January 2024, the Government indicates that, to increase the percentage of reinstatement orders implemented in practice for workers subject to anti-union dismissals, on 10 February 2023, the judicial authorities established the Pluripersonal Court of Penal Resolution to hear cases of non-compliance with labour and social welfare decisions and thereby expedite the reinstatement orders issued by the competent courts. In its last communication, the Government states that, from the establishment of the Pluripersonal Court of Penal Resolution until March 2024, the Court received 166 cases of non-compliance relating to the public sector, 42 relating to the municipal sector and 124 relating to the private sector, and that it resolved 101 cases. The Government also refers to the technical assistance provided by the ILO in April 2024 by means of an analysis presented to the tripartite constituents on the mechanisms to ensure compliance with reinstatement orders.
4. 421. Concerning recommendation (c) (outcome of the appeal lodged by the Public Prosecutor’s Office concerning the criminal complaint filed by SITRACOGUA against the executives of the sports institution), the Government indicates the following: (i) the First Pluripersonal Court of Penal Resolution of the Municipality of Guatemala, in a hearing on 14 April 2018, dismissed the charge brought by the Special Inspection Unit for Crimes against Trade Unionists against officials from the sports institution; (ii) on 12 May 2016, the Inspection Unit filed an application for proceedings for the protection of constitutional rights (amparo), maintaining that, in dismissing the criminal complaint, the contested authority had exceeded its powers by obstructing the investigation of an act identified as a criminal offence; (iii) by means of a ruling dated 17 June 2016, the Third Criminal Court of First Instance Responsible for Narcotics Offences and Crimes against the Environment of Guatemala sitting as an amparo constitutional court, rejected the amparo appeal on the grounds that ordinary means of appeal had not been exhausted; (iv) the Investigation Unit appealed against the ruling of 17 June 2016, and the Constitutional Court, by means of a decision dated 2 March 2017, granted the request for amparo and ordered the First Pluripersonal Court of Penal Resolution of the Municipality of Guatemala to issue a new decision clearly and precisely stating the factual and legal grounds on which its decision was based; (v) by means of a decision dated 27 June 2017, the First Pluripersonal Court of Penal Resolution considered that the evidence was insufficient to define the conduct of the defendants as the alleged offences of discrimination and coercion, and would only result in the erosion of the administration of justice, and that the case could only be handled in the context of labour proceedings; and (vi) considering that the decision of 27 June 2017 issued by the First Pluripersonal Court of Penal Resolution was not in conformity with the order of the Constitutional Court, the Investigation Unit filed a complaint before the Constitutional Court which, by means of a decision dated 21 August 2017, declared inadmissible the complaint filed by the Public Prosecutor’s Office. Consequently, the Government indicates that the dismissal of the offences is final and that the process is now being handled by the Integrated Active Case Management system of the prosecution services for offences, where the proceedings are being examined in order to enable a timely procedural outcome in the field of labour law.
5. 422. With regard to recommendation (d) (security measures regarding Ms Marina García and Ms Suleima de León), the Government indicates that: (i) the Public Prosecutor’s Office, through the Special Investigation Unit for Crimes against Trade Unionists, states that, on 10 February 2014, the Special Investigation Unit received, as part of its investigative functions, the witness statements of Ms García and Ms de León, who indicated that they had filed their complaint on the grounds that they had been dismissed and not because they had been subjected to any kind of threats; despite this, they were issued with requests to provide prompt and direct perimeter security support, addressed to the National Civil Police, on the grounds established in the complaint filed; (ii) it was verified in the computer system of the Public Prosecutor’s Office whether, as from 2014, one of the two aforementioned persons had filed a complaint for offences committed against them in relation to their trade union membership and/or activity, and no such complaint was found; (iii) similarly, the Risk Assessment Department of the Personal Protection and Security Division of the National Civil Police as part of the Ministry of the Interior, was consulted on the possible implementation of a security measure in favour of Ms García and Ms de León, but no risk assessment in favour of those persons was found; and (iv) in October 2016, the Protocol for the implementation of immediate and preventive security measures for trade union members, officers, activists and leaders, and labour rights activists, and on the provision of premises for their activities, entered into force.
6. 423. The Government also provided supplementary information indicating that, with regard to the appeal lodged by Mr Joel Zeceña García and Mr Luis Arturo Chinchilla Gómez against the sports institution, on 31 August 2018, the First Chamber of the Labour and Social Welfare Appeals Court revoked the ruling dated 26 July 2016 handed down by the Court of First Instance in favour of the two trade union leaders, considering in this case that no anti-union discrimination had been proven and that, as no request for trade union leave had been made in advance, the employer was legally entitled to follow the relevant disciplinary procedures (suspension).

C. The Committee’s conclusions

1. 424. The Committee recalls that this case concerns the allegation of mass dismissals within a sports institution in retaliation for the establishment of the Workers’ Union of the Guatemalan Olympic Committee (SITRACOGUA), as well as acts of intimidation against the workers of that institution in order to pressure them into resigning from the union.
2. 425. Regarding recommendation (a) (judicial challenge to the dismissal of the founding members of SITRACOGUA and excessive delay in the resolution of the requests for reinstatement issued by the labour inspectorate), the Committee notes with regret that the Government has not provided information on the outcome of the judicial challenge to the dismissals in question of the founding members of SITRACOGUA, and has only provided details on the appeals filed against the sports institution by two of its members (Mr Joel Zeceña García and Mr Luis Arturo Chinchilla Gómez) concerning disciplinary sanctions (suspension). The Committee recalls that, in its previous examination of the case, it had noted that 20 members of SITRACOGUA had been dismissed on 31 January 2014, that the labour inspectorate had requested their reinstatement, and that 16 of those workers had initiated legal proceedings for their reinstatement. Noting with regret the lack of information in this regard, the Committee is therefore obliged to recall that justice delayed is justice denied [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 170]. The Committee also recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Compilation, para. 1145]. In these circumstances, in response to the lack of information on the status of the 16 dismissed members of SITRACOGUA, and underscoring that the events date back to over ten years ago, the Committee firmly urges the Government to keep it informed of any progress made with regard to the legal proceedings for reinstatement initiated by the aforementioned workers. The Committee also requests additional information from the complainant in order to have more clarity on the prevailing conditions.
3. 426. Concerning recommendation (b) (thorough revision of the procedural rules of the relevant labour regulations to ensure that the judiciary provides appropriate and effective protection against cases of anti-union discrimination), the Committee notes that the Government provides information on the examination by the Congress of the Republic of the draft Labour and Social Security Procedural Code (Bill No. 5809) submitted on 17 July 2020 by the Supreme Court of Justice. The Committee particularly notes the Government’s indication that the Congressional Commission on Reforms in the Legal Sector issued, in December 2021, an unfavourable decision on the Bill on grounds relating to constitutional review, the social impact of the legislation and the protection of the State, while the Labour Commission has not yet issued a decision.
4. 427. The Committee also notes the Government’s indication that: (i) to increase the percentage of reinstatement orders implemented in practice for workers subject to anti-union dismissals, on 10 February 2023, the judicial authorities established the Pluripersonal Court of Penal Resolution to hear cases of non-compliance with labour and social welfare decisions and thereby expedite the reinstatement orders issued by the competent courts; and (ii) in the framework of the support for the implementation of the road map on freedom of association, in April 2024, the ILO presented an analysis to the tripartite constituents on the mechanisms to ensure compliance with court reinstatement orders in the case of dismissals of trade unionists in Guatemala.
5. 428. The Committee duly notes this information and particularly welcomes the establishment of the Pluripersonal Court of Penal Resolution to address offences of non-compliance in labour matters. The Committee also observes that, in the context of the technical assistance recently provided to the State of Guatemala on compliance with court reinstatement orders (April 2024), the need for a legislative reform on court protection against anti-union discrimination was reiterated. In the light of the above, the Committee trusts that, in consultation with the social partners, the necessary procedural rules will be adopted to ensure that all cases of alleged anti-union discrimination are swiftly examined by the courts and that the respective court decisions are implemented without delay. The Committee refers this legislative aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.
6. 429. Regarding recommendation (c) (outcome of the appeal lodged by the Public Prosecutor’s Office concerning the criminal complaint filed by SITRACOGUA against the executives of the sports institution), the Committee notes that the Government indicates the following: (i) the Public Prosecutor’s Office had brought charges for alleged offences of discrimination and coercion, against the executives of the institution, but the Pluripersonal Court of Penal Resolution dismissed the charges; (ii) the Public Prosecutor’s Office therefore filed amparo proceedings, which were declared inadmissible, and then lodged an appeal before the Constitutional Court; (iii) the appeal filed by the Public Prosecutor’s Office was resolved in its favour, and consequently, the Constitutional Court ordered the Pluripersonal Court of Penal Resolution to issue a new decision clearly and precisely stating the factual and legal grounds on which it was based; (iv) in this regard, the Court in question issued a new decision establishing that the evidence was insufficient to define the conduct of the defendants as the alleged offences of discrimination and coercion and that the case could only be handled in the context of labour proceedings; and (v) the Public Prosecutor’s Office, which disagreed with the decision, filed a complaint before the Constitutional Court, which was declared inadmissible. The Committee observes that the Government therefore indicates that the dismissal of the offences is final and that the case is now being handled by the Integrated Active Case Management system, where the proceedings are being examined in order to enable a timely procedural outcome in the field of labour law. While it duly notes the final decisions to dismiss the criminal complaint indicated by the Government, the Committee observes with regret that more than 11 years after the filing of the initial complaint, the Public Prosecutor’s Office has yet to determine a timely procedural outcome to address the facts that are the subject of the aforementioned complaint. The Committee underscores the need for this case to be resolved rapidly in accordance with freedom of association, and requests the Government to provide updated information in this regard.
7. 430. Concerning recommendation (d) (security measures relating to Ms Marina García and Ms Suleima de León), the Committee notes the Government’s indication that: (i) the Public Prosecutor’s Office, through the Special Investigation Unit for Crimes against Trade Unionists, states that, on 10 February 2014, the Special Investigation Unit received, as part of its investigative functions, the witness statements of Ms García and Ms de León, who indicated that they had filed their complaint on the grounds that they had been dismissed and not because they had been subjected to any kind of threats; despite this, they were issued with requests to provide prompt and direct safety support, addressed to the National Civil Police, on the grounds established in the complaint filed; (ii) it was verified in the computer system of the Public Prosecutor’s Office whether, as from 2014, one of the two aforementioned persons had filed a complaint for offences committed against them in relation to their trade union membership and/or activity, and no such complaint was found; (iii) similarly, the Risk Assessment Department of the Personal Protection and Security Division of the National Civil Police as part of the Ministry of the Interior, was consulted on the possible implementation of a security measure in favour of Ms García and Ms de León, but no risk assessment in favour of those persons was found; (iv) subsequently, in October 2016, the Protocol for the implementation of immediate and preventive security measures for trade union members, officers, activists and leaders, and labour rights activists, and on the provision of premises for their activities, entered into force. The Committee duly notes this information.
8. 431. Lastly, the Committee observes with concern that, since the last examination of the case, the Government has not provided information on recommendation (e) concerning the free exercise of freedom of association and collective bargaining within the sports institution. In the light of the multiple procedural delays following the dismissal of the members of SITRACOGUA, the Committee requests the Government to take the necessary steps to ensure that the workers from the aforementioned institution may exercise their trade union rights, and to provide updated information in this respect.