Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Forced Labour Convention, 1930 (No. 29) - Guatemala (Ratification: 1989)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. In its previous comments, the Committee requested the Government to continue to strengthen the capacities of the entities responsible for enforcing the 2009 Act against sexual violence, exploitation and trafficking in persons, and to provide information on the implementation of the various strategic components of the Public Policy against Trafficking in Persons and for the Comprehensive Protection of Victims (2014–24) adopted under the coordination of the State Secretariat against Sexual Violence, Exploitation and Trafficking in Persons (SVET), which is the body responsible for promoting, coordinating and evaluating the actions of various state bodies involved in combating trafficking in persons.

The Committee notes the detailed information provided by the Government in its report. It notes with interest that numerous activities were undertaken, in particular by the SVET, to prevent trafficking in persons through public awareness-raising initiatives and trainings, mainly among students in public schools, members of the civil society, civil servants, as well as members of the police and armed forces, in particular at border areas, including by continuing the “Blue Heart” campaign and by providing materials in indigenous languages and in braille. It notes that, according to the statistical information provided by the Government, 66,955 persons participated in actions of prevention carried out by the SVET in 2014, while they were more than 87,000 participants in 2016. It further notes that several public institutions regularly provided training to their staff in order to strengthen their knowledge on trafficking issues and relevant legislative provisions and that, according to the statistical information provided by the Government, 40,305 persons were trained at an internal level in 2016, among which public servants and officers from the SVET, the Public Prosecutor’s Office and the General Directorate of Migration.

The Committee notes that the SVET continued to coordinate activities and meetings in the framework of the Interinstitutional Commission against Trafficking in Persons (CIT) and that several actions were implemented in collaboration between the National Police, the Public Prosecutor’s Office and the SVET. The Committee notes that, in the framework of the implementation of the Public Policy, several instruments were elaborated by the SVET, such as a compendium of resources on trafficking in persons, the Guide for the identification of trafficking victims and the Reference Guide for trafficking victims. Referring to its previous comments on the recommendations made by the Human Rights Prosecutor’s Office in its March 2015 report, the Committee takes note of the detailed information provided by the Government on the measures implemented as a result, such as the adoption by the Prosecutor General’s Office of general instructions for victim identification and assistance, and prosecution of cases of trafficking (General Instructions Nos 3-2017 and 4-2017). In that regard the Committee takes note of Decree No. 18-2016 which authorizes the creation of positions of prosecutors specializing in trafficking in persons within the Public Prosecutor’s Office. It further notes the adoption of the anti-trafficking action plan for 2018–22 and that, from 2015 to February 2017, 328 cases of trafficking in persons were being prosecuted in first instances and 289 judgments have been handed down on trafficking cases, out of which 130 convictions on the basis of section 202 of the Penal Code. The Government adds that, during the same period, 305 new cases registered before judicial bodies and the Supreme Court were terminated by other means, mainly lack of merit, withdrawal or provisional closure. The Committee notes that several United Nations (UN) Treaty Bodies recently expressed concern at: (i) the lack of sufficient human, technical and financial resources to prevent trafficking in persons; (ii) the insufficient capacity of law enforcement officers to promptly identify victims; (iii) the insufficient number of specialized shelters, in particular in rural areas, and the lack of high-quality specialized services in shelters for trafficking victims; as well as (iv) the low rate of prosecution and convictions of perpetrators of trafficking of persons, despite the increase in the number of the specialized courts, and the failure to provide redress for victims (CMW/C/GTM/CO/2, 2 May 2019, paragraph 52; CAT/C/GTM/CO/7, 26 December 2018, paragraph 36; CCPR/C/GTM/CO/4, 7 May 2018, paragraph 12; and CEDAW/C//GTM/CO/8-9, 22 November 2017, paragraph 24). The Committee requests the Government to pursue its efforts to combat trafficking in persons and to provide information on the measures taken on the prevention, detection, assistance, protection and repatriation of trafficking victims, and the prosecution and punishment of perpetrators, including in the framework of the Public Policy against Trafficking in Persons and for the Comprehensive Protection of Victims (2014–24) and the anti-trafficking action plan for 2018–22. It asks the Government to continue to provide information on the measures taken to strengthen the capacities of the entities responsible for enforcing the 2009 Act against sexual violence, exploitation and trafficking in persons, in order to be in a position to fully and adequately identify cases of trafficking in persons for both sexual and labour exploitation, and conduct investigations throughout the whole territory. The Committee also asks the Government to provide information on the number and nature of investigations carried out on cases of trafficking in persons, judicial proceedings instituted and decisions handed down, while specifying the number of perpetrators convicted, penalties imposed on the basis of section 202ter of the Penal Code, which criminalizes trafficking in persons, and compensation awarded to victims, in accordance with section 58 of the 2009 Act.

Articles 1(1) and 2(1). Obligation to work overtime under threat of a penalty. Plantations. In its previous comments, the Committee noted the observations made by the Trade Union of Workers of Guatemala (UNSITRAGUA) concerning the case of enterprises that set production targets for their workers such that the workers, in order to earn the minimum wage, are obliged to work beyond ordinary working hours, with the overtime being unpaid. It noted the establishment of a special high-level commission of labour inspectors responsible for carrying out unannounced visits to monitor worker/employer relations in these workplaces, in particular through the implementation of an operational plan covering agricultural undertakings, plantations and farms in the Departments of San Marcos, Suchitepéquez, Quetzaltenango and Chimaltenango to verify compliance with the Government’s agreements fixing minimum wages for agricultural and non-agricultural activities. The Committee notes the information provided by the Government on the 62 labour inspections carried out in this framework in 2008 and 2009, which specifies that some farms could not be located because they closed, changed name or exact address was not provided. The Committee however notes that, in its 2019 annual report, the UN Office of the High Commissioner in Guatemala highlighted that workers on plantations in the Northern Transversal Strip reported the use of illegal contractors who charge workers to be hired; excessive working hours; high production goals; and payment of less than the minimum wage (A/HRC/40/3/Add.1, 28 January 2019, paragraph 76). Recalling that this question is also the subject of its 2019 direct request on the application of the Plantations Convention, 1958 (No. 110), the Committee requests the Government to provide information on the visits made by the labour inspectorate in the agricultural sector and the violations detected concerning the obligation to work overtime.

Article 2(2)(c). Consent of prisoners for work for private entities. The Committee recalls that, under the Prisons Act (Decree No. 33-2006 of 7 September 2006), detainees have the right to perform a useful and remunerated job outside the prison for public or private enterprises. The Committee notes that, according to the statistical information provided by the Government, between 2015 and 2017, 566,687 prisoners were working, mainly as own-account workers. It notes in that regard that prisoners who wish to work as own-account workers shall send an application to the prison director for the approval of their project and entering of tools and raw materials within the prison, and once approved prisoners are able to sell their products on the labour market under the supervision of the prison. The Committee however observes that the Government does not provide information on prisoners who work in private enterprises. The Committee once again asks the Government to provide information on the manner in which the prisoners formally give their free and informed consent to work for private enterprises in practice.