Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Abolition of Forced Labour Convention, 1957 (No. 105) - Guatemala (Ratification: 1959)

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing political views, for breaches of labour discipline and for participation in strikes. In previous comments, the Committee noted the Government’s indication that some provisions of the Penal Code that may affect the application of the Convention, particularly Article 1(a), (c) and (d), are still in force but are not applied. The provisions in question are the following sections of the Penal Code: “Any person who seeks to organize or operate, or who participates in, associations which act in collaboration with, or in obedience to, international bodies that promote the communist ideology or advocate any other totalitarian system, or associations whose purposes offend against the law, shall be punished with imprisonment of from two to six years” (section 396); “Any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years” (section 419); “Anyone committing an act intended to paralyze or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years” (section 390(2)); and “Public servants, public employees and other employees or members of the staff of public service enterprises who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalty shall be doubled where such stoppage harms the public interest, and in the case of leaders, promoters or organizers of a collective stoppage” (section 430). The Committee also noted that under section 47 of the Penal Code labour is compulsory for prisoners.

The Committee has pointed out repeatedly that, in breach of the Convention, these provisions allow the imposition of prison sentences involving compulsory labour as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike, and it requested the Government to repeal them. In its report, the Government indicates that, according to the opinion issued by the Technical and Legal Advisory Council of the Ministry of Labour and Social Insurance, sections 396, 419, 390(2) and 430 of the Penal Code can be applied without involving the violation of any ILO Convention, and furthermore prison labour is voluntary and there is no initiative to amend the above provisions of the Penal Code. Nevertheless, the Government indicates that, irrespective of these considerations, this subject will be placed on the agenda of the Tripartite Commission on International Labour Affairs.

The Committee hopes that the Government will provide information on the outcome of this issue in the Tripartite Commission on International Labour Affairs and that the necessary measures will be taken to repeal or amend the provisions referred to above. In the meantime, the Committee requests the Government to provide information on the application in practice of the above provisions of the Penal Code, including copies of any rulings handed down under these provisions.

With reference to the participation in strikes of public employees and in public services that are declared essential, the Committee refers to its comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it has also called for these provisions to be repealed.