Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Worst Forms of Child Labour Convention, 1999 (No. 182) - Guatemala (Ratification: 2001)

Articles 3(a) and 7(1) of the Convention. Sale and trafficking of children for commercial sexual exploitation and the penalties applied. The Committee previously noted the adoption of the Law against sexual violence, exploitation and trafficking in persons (Decree No. 9/2009). It noted the sanctions prescribed by the Law, as well as the statistics provided by the Government relating to the application in practice of these new provisions. The Committee observed that no sanctions appeared to have been applied for the crime of trafficking of children between 2008 and 2009 and that also the Committee on the Rights of the Child (CRC), in its concluding observations of 25 October 2010 expressed concern at the lack of convictions for sexual exploitation since the adoption of Decree No. 9/2009, and at the tolerance of the competent authorities in relation to trafficking (CRC/C/GTM/CO/3-4, paragraph 94). The Committee expressed concern at the information bearing witness to the persistence of the problem of the trafficking of children under 18 years of age for their commercial sexual exploitation and at the allegations of the complicity between officials entrusted with the enforcement of the law and persons engaging in the trafficking of persons. In this regard, it urged the Government to take the necessary measures to ensure that thorough investigations and robust prosecutions were carried out against the perpetrators and requested it to provide detailed information on the number of investigations conducted, and prosecutions and convictions applied.

The Committee notes the statistics available on the website of the National Centre for Analysis and Legal Documentation as regards the application of section 202ter and section 202 quarter of the Penal Code, as amended by Decree No. 9-2009 issuing the Act against sexual violence, exploitation and trafficking in persons. The Committee notes that 294 cases concerning trafficking in persons were brought to the attention of the judicial bodies during the period 2009–April 2012, of which 86 concerned girls and 20 concerned boys under the age of 18. 38 judgments were rendered resulting in ten convictions. Yet the information does not specify how many judgments and sentences concerned the sale and trafficking of children under 18 years of age for commercial sexual exploitation and of officials who are complicit in such acts, nor the types of sanctions applied.

The Committee notes, on the basis of the report of June 2012 on the ILO–IPEC project entitled “Eliminating Child Labour in Latin America (Phase IV),” that the Government through Agreement 1-2012 established a prosecution office specialized in trafficking in persons and that the judiciary set up specialized courts for exploitation and trafficking to ensure specialized expertise of the judges.

While noting the statistics on the application of Decree No. 9/2009, as well as the measures taken to reinforce the prosecution of trafficking and commercial sexual exploitation offences, the Committee requests the Government to pursue its efforts to ensure that thorough investigations and robust prosecutions are carried out against the perpetrators of trafficking of children under 18 years of age for commercial sexual exploitation, and of officials who are complicit in such acts. It also requests the Government to continue to provide information on the number of investigations, prosecutions, convictions and sanctions imposed against persons who engage in the sale and trafficking of children under 18 years of age for commercial sexual exploitation.

Article 3. Worst forms of child labour. Clause (d). Hazardous types of work. Production and handling of explosive materials and products. The Committee previously noted the measures adopted by the Government to combat child labour in the fireworks industry. It also noted that national legislation prohibits work by persons under 18 years of age in the manufacture, preparation and handling of explosive substances or products and the production of explosives or fireworks. It requested the Government to continue to provide information on the number of inspections carried out by the labour inspection services in firework factories, as well as the nature of the violations reported and the penalties imposed as a result of such inspections.

The Committee notes from the information provided by the Government that many factories manufacturing fireworks have disappeared, due to the stringent legislation in this regard and many factories have therefore favoured homework. The Committee also notes the Government’s indication that the labour inspectorate has only managed to visit ten factories in 2011, since the population of the places where most factories manufacturing fireworks are concentrated have prevented surveillance by the labour inspectorate out of fear of becoming unemployed. In 2011, the labour inspectorate did manage to carry out 167 visits of distribution centres of fireworks. The Committee notes that a total of 16 contraventions were found and presented to the Labour Tribunal, the resolution of which is currently still pending.

Noting the Government’s information that firework production has been largely moved from the factory premises to work carried out at home, the Committee urges the Government to take immediate and effective measures to ensure that persons under 18 years of age are not engaged in the manufacturing, preparing and handling of explosive substances or products and the production of explosives or fireworks at home. The Committee requests the Government to provide information on the concrete measures taken and results achieved in this regard. In addition, it urges the Government to step up its efforts to carry out labour inspections in all firework factories. It requests the Government to provide information on the number of inspections carried out in this regard, as well as the nature of the violations reported and the penalties imposed as a result of such inspections.

Article 6. Programmes of action. National Plan of Action to Combat the Commercial Sexual Exploitation of Children. In its previous comments, the Committee noted that the National Plan of Action to Combat the Commercial Sexual Exploitation of Children was being revised. The Committee observed that, in the Government’s reports submitted to the CRC on 23 November 2009 (CRC/C/GTM/3-4, paragraphs 255–256), the Government indicated that the National Plan of Action to Combat the Commercial Sexual Exploitation of Children had been adopted as official policy by the Secretariat of Social Welfare, but that the secretariat had not been able to implement the Plan and, in view of the inadequacy of the budget allocated, it was only able to implement programmes for the children of female sex workers in the area around the airport. The Committee requested the Government to provide information on the programmes of action developed as part of the implementation of the National Plan.

Noting that the Government’s report again does not provide information on this point, the Committee once again urges the Government to adopt immediate and effective measures to ensure the implementation of the National Plan of Action to Combat the Commercial Sexual Exploitation of Children. It requests the Government to provide information on this subject in its next report.

Article 7(2). Effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour, removing them from these forms of labour and ensuring their rehabilitation and social integration. Commercial sexual exploitation and trafficking for that purpose. In its previous comments, the Committee noted the adoption in 2007 of a “Public Policy to combat the Trafficking of Persons and Ensure the Full Protection of Victims and a National Plan of Strategic Action (2007–17)”, with the objectives of the immediate and full protection of victims, namely medical and psychological care and reintegration into the family and society. It also observed that the CRC, in its concluding observations of 25 October 2010 noted with concern that the competent authorities did not provide specialized or appropriate care for victims of trafficking and sexual exploitation and that the Government did not provide appropriate support to organizations working in this field (CRC/C/GTM/CO/3-4, paragraph 94). The Committee requested the Government to take time-bound measures to prevent the commercial sexual exploitation of children and provide direct assistance to children to remove them from these worst forms of child labour.

The Committee notes the information provided by the Government in its report concerning the results of the project Conrado de la Cruz carried out by the Ministry of Labour and Social Welfare. Between September 2011 and January 2012 the project reached out to a total of 11,175 children to prevent their engagement in child labour; 4,575 children below the minimum age for employment (14) were reintegrated in the education system and received funding for this purpose and 417 children above 14 years old received vocational and technical education. In addition, numerous information activities have been organized to raise awareness about child labour, in particular its worst forms, existing protection measures, in particular for vulnerable children.

The Committee also notes from the Government’s report on the application of the Forced Labour Convention, 1930 (No. 29), that, in the context of the implementation of the “Public Policy to combat the Trafficking of Persons and Ensure the Full Protection of Victims and a National Plan of Strategic Action (2007–17)”, the Secretariat against Sexual Violence, Exploitation and Trafficking of Persons (SVET) has been established. The SVET, which started its operations in 2011, has been created to ensure compliance with the Law against sexual violence, exploitation and trafficking in persons (Decree No. 9/2009) and to coordinate and supervise Government policies and programmes in this respect. The Committee notes that the first activities of the SVET have focused on prevention and so far 49 seminars and conferences for different Government institutions, inter alia, the Ministry of Education, the Ministry of Health and the labour inspectorate, have been carried out.

While noting the measures taken by the Government, the Committee requests the Government to continue its efforts to take effective and time-bound measures to prevent and remove children from the worst forms of child labour, in particular from becoming victims of commercial sexual exploitation or trafficking for that purpose; and to provide the necessary and appropriate direct assistance to remove the child victims from these worst forms of child labour. In this regard, the Committee requests the Government to continue to provide information on the measures adopted or envisaged as part of the implementation of the “Public Policy to combat the Trafficking of Persons and Ensure the Full Protection of Victims and a National Plan of Strategic Action (2007–17)”.

Article 8. International cooperation. Trafficking of children for commercial sexual exploitation. In its previous comments, the Committee noted that the CRC, in its concluding observations of July 2007 (CRC/C/OPSC/GTM/CO/1, paragraph 29), while recognizing the conclusion of memorandums of understanding with neighbouring countries of Guatemala, expressed concern at the fact that undocumented foreign children, including victims of trafficking, are subject to deportation and must leave the country within 72 hours. The Committee also noted the Government’s indication that a new Inter institutional Protocol for the repatriation of victims of trafficking was adopted in December 2009. While observing that the Protocol was not yet implemented in practice, the Committee requested the Government to provide information on the measures taken to implement the Protocol.

While the Government’s report contains no information on the implementation of the Protocol, the Committee notes from the Government’s report on the application of Convention No. 29 that one of the tasks of the SVET is to promote the conclusion and implementation of bilateral and multilateral agreements to ensure international protection of victims.

In these circumstances, the Committee once again requests the Government to provide information on the measures taken to ensure the rehabilitation and social integration of child victims removed from trafficking for commercial sexual exploitation in their country of origin in the context of the implementation of the Inter-institutional Protocol for the repatriation of victims of trafficking and the activities of the SVET.

The Committee is raising other points in a request addressed directly to the Government.