Report in which the committee requests to be kept informed of development - Report No 386, June 2018

Case No 2445 (Guatemala) - Complaint date: 31-AUG-05 - Closed

Allegations: Murders, threats and acts of violence against trade unionists and their families; anti-union dismissals and refusal of private companies and public institutions to comply with judicial reinstatement orders; harassment of trade unionists

1. 297. The Committee last examined this case at its March 2017 meeting, when it presented an interim report to the Governing Body [see 381st Report, approved by the Governing Body at its 329th Session (March 2017), paras 443–463].
2. 298. The Government sent further observations in communications dated 21 February, 6 March and 20 April 2018.
3. 299. 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. Previous examination of the case

1. 300. At its March 2017 meeting, the Committee made the following recommendations [see 381st Report, para. 463]:
   • (a) With regard to the investigations into the murder of union leader Mr Raquec Ishen, the Committee once again urges the Government to take all necessary steps to identify once and for all the perpetrators and instigators of this murder and the motives for the crime, and to ensure that the guilty parties are prosecuted and punished by the courts. The Committee requests the Government to keep it informed of any developments.
   • (b) The Committee requests the Government to keep it informed of the outcome of the risk assessment for Ms Mérida Coy and her children and of any security measures taken as a result.
   • (c) The Committee requests the Government to send a copy of the judgment which clearly indicated that the motive of the attempted murder of Mr Marcos Álvarez Tzoc was not related to the trade union activity of the victim. The Committee requests the Government to indicate the reasons for having not yet executed the criminal sanction ordered in respect of this attempted murder and once again expresses its firm hope that this sanction will be enforced without delay. It requests the Government to keep it informed in this respect.
   • (d) The Committee urges the Government to provide, without delay, information on the action taken, in accordance with the Protocol for the Implementation of Immediate and Preventive Security Measures for trade union members and leaders and labour rights activists, to evaluate the need to ensure protective measures for Mr Álvarez Tzoc.
   • (e) With respect to the allegations of death threats against members of the Itinerant Vendors’ Trade Union by municipal police officers, in the absence of a legal possibility to carry out an ex officio criminal investigation, the Committee requests the Government to carry out an internal investigation within the police force on this matter.
   • (f) The Committee urges the Government, in the strongest possible terms, to ensure that, in future, any reports of acts of anti-union violence against, threats to or harassment of members of the trade union movement trigger immediate and effective investigations by the competent public authorities and the implementation of adequate protection measures.
   • (g) The Committee firmly expects that the commitments made by the Government in the Memorandum of Understanding signed on 26 March 2013 between the Government of Guatemala and the Chairperson of the Workers’ group of the ILO Governing Body, as well as the efforts made to implement it, will be translated into tangible results with respect to the allegations still pending in this case.
   • (h) The Committee draws the Governing Body’s special attention to the extreme seriousness and urgent nature of this case.

B. The Government’s reply

1. 301. In a communication of 6 March 2018, the Government sent information from the Public Prosecutor’s Office on the status of investigations into the murder on 28 November 2004 of Mr Julio Raquec Ishen, the general secretary of the Trade Union Federation of Informal Workers. As the Committee had been informed on previous occasions, the information provided by the Public Prosecutor’s Office once again emphasizes that: (i) it has not been possible to secure the collaboration of Ms Lidia Mérida Coy (eyewitness to the murder and the victim’s partner), who refuses to identify the possible perpetrators; and (ii) Ms Lesbia Aracely Rodríguez Solís (another eyewitness to the crime), when interviewed, stated that she had been unable to see the young people with whom Ms Mérida Coy had been arguing with on the day in question. The information from the Public Prosecutor’s Office also indicates that: (i) as part of the investigations into the crime, the National Civil Police, the Department for the Prison System and the Ministry of the Interior were asked for information on two individuals suspected of involvement in the crime; (ii) the particulars provided by those institutions revealed that one of the two individuals, whose photo was on prison files, was murdered on 2 February 2015; and (iii) in the light of the above and in view of the fact that the chief suspect in the murder of Mr Raquec was himself murdered, the Public Prosecutor’s Office will request the judicial body in charge of the investigation to terminate the criminal prosecution relating to the aforementioned individual.
2. 302. In its communication of 20 April 2018, the Government submitted information, provided by the Ministry of the Interior, on the measures taken to assess the need to provide protection to the victim’s partner and other family members. The Government states in this regard that: (i) attempts were made to locate Ms Lidia Mérida Coy on a number of occasions in order to assess the risk to her and her immediate family and to obtain her testimony at various points in the investigation into the murder of Mr Raquec; (ii) nevertheless, Ms Coy stated on several occasions that she does not intend to cooperate with the authorities; (iii) both Ms Coy’s lack of interest and the current impossibility of locating her are clear; and (iv) it is evident from the above that Ms Coy has no intention of being subject to protection measures.
3. 303. In its communication of 20 April 2018, the Government submitted information concerning the attempted murder of union leader Marcos Álvarez Tzoc in January 2003. The Government sent a copy of the judgment of 14 October 2004 sentencing Mr Julio Enrique de Jesús Salazar Pivaral to ten years’ non-commutable imprisonment for attempted murder. The Government underscores that it is noted in the judgment concerned that there was no anti-union motive behind the incident. In relation to the measures taken to assess the need to provide protection to Mr Tzoc, the Government states that: (i) since the aforementioned judicial decision, Mr Tzoc never stated that he was in danger or filed any complaint, hence there is no obvious reason why there would be a need to provide him with protection measures; and (ii) protection measures are provided to any person who considers himself/herself to be in danger of life or limb, whereas if there is no such indication it is impossible to determine the presence of any danger.
4. 304. The Government then refers to the request of the Committee, in the absence of a legal possibility to carry out an ex officio criminal investigation in this regard, to carry out an internal police investigation into allegations of death threats against members of the Itinerant Vendors’ Trade Union by members of the police, which allegedly took place in Antigua on 21 March 2005. The Government refers to the elements provided by the Ministry of the Interior in which it is indicated that the conduct of such an investigation would require detailed information about the incident, which does not exist in the absence of specific elements contained in the criminal complaint that was filed at the time but dropped by the complainants, who did not reappear. In addition, the Government reiterates that it is legally impossible to carry out a further investigation into facts that already gave rise to a complaint that had to be dismissed in the absence of interest on the part of the complainant.
5. 305. Lastly, in its various communications, the Government also sent information on allegations in relation to which the Committee has not pursued its examination.

C. The Committee’s conclusions

1. 306. The Committee recalls that the present case is concerned with allegations of murders, threats and acts of violence against trade unionists and their family members and also with dismissals and other anti-union acts. The Committee also recalls that it has examined this case on nine occasions since it was first presented in 2005.
2. 307. As regards the investigations into the murder of Mr Julio Raquec Ishen, general secretary of the Trade Union Federation of Informal Workers, which occurred on 28 November 2004, the Committee notes that the Government indicates once again that the main witness to the murder, Ms Lidia Mérida Coy, the victim’s partner, still refuses to testify and that a second witness to the crime was interviewed but stated that she had been unable to see the young people who had been arguing with Ms Lidia Mérida Coy at the time of the crime. The Committee also notes that the Government adds that: (i) as part of the investigations into the crime, the National Civil Police, the Department for the Prison System and the Ministry of the Interior were asked for information on two individuals suspected of involvement in the crime; (ii) the particulars provided by those institutions revealed that one of the two individuals, whose photo was on prison files, was murdered on 2 February 2015; and (iii) in the light of the above and in view of the fact that the chief suspect in the murder of Mr Raquec was himself murdered, the Public Prosecutor’s Office will request the judicial body in charge of the investigation to terminate the criminal prosecution relating to the aforementioned individual.
3. 308. While duly noting this information, especially relating to the death of the person described as the chief suspect in the murder of Mr Raquec, the Committee understands that this death does not signify the end of the corresponding investigation inasmuch as the particulars supplied by the Public Prosecutor’s Office refer to the involvement of two individuals in the perpetration of these acts and also to the identification of another suspect. Recalling once again that in cases of physical or verbal violence against workers’ and employers’ leaders and their organizations, the absence of judgments against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 108], the Committee urges the Government to continue taking all necessary steps to ensure that all the perpetrators and instigators of this murder and also the motives for the crime are identified once and for all, and that guilty parties who are still alive are prosecuted and punished by the courts. The Committee requests the Government to keep it informed of any developments in this regard.
4. 309. In its previous examination of the case, noting the Government’s indication that a risk assessment had been ordered to ensure the safety of Mr Julio Raquec Ishen’s partner, Ms Lidia Mérida Coy, and her children, the Committee asked the Government to provide information on the outcome of that assessment and of any security measures taken on the basis thereof. The Committee takes note of the information supplied by the Government in this respect in which it indicates that: (i) attempts have been made to locate Ms Lidia Mérida Coy on a number of occasions, both to assess the risk to her and to her immediate family and to obtain her testimony at different points in the investigation into the murder of Mr Raquec; and (ii) nevertheless, Ms Coy has indicated on various occasions that she did not intend to cooperate with the authorities and clearly does not intend to be subject to protection procedures. In this regard, the Committee notes, on the one hand, that the complainant organizations, when submitting the present complaint in August 2005, alleged that Ms Coy had received threats and, on the other hand, that since that time these organizations have not sent any further communications concerning Ms Coy’s situation. On the basis of the above and provided that the complainant organizations do not give further indications that Ms Coy and her family members require protection measures, the Committee will not pursue its examination of this aspect of the case.
5. 310. With regard to the attempted murder of Mr Marcos Álvarez Tzoc, recalling that, according to the complainant organization’s allegations, the perpetrator of the attempted murder was the victim’s employer and that the assault had been preceded by acts of harassment against the trade union organization of which Mr Tzoc was a member of the board of directors, the Committee, in its most recent examination of the case, had asked the Government to send a copy of the judgment clearly indicating that the motive for the crime was not related to the victim’s trade union activity and to indicate the reasons why, 14 years after the events, the criminal penalty imposed on the perpetrator of the attempted murder had not yet been executed. The Committee welcomes that, after numerous requests in this regard, the Government has finally been able to provide the text of the judgment of 14 October 2004, which confirms that the perpetrator of the attempted murder was sentenced to ten years’ non-commutable imprisonment. The Committee also notes that it appears from the text of the judgment that the immediate motive for the attempted murder was a dispute over a bunch of bananas grown on the perpetrator’s property which Mr Tzoc attempted to sell to a third party (a factor also mentioned in the allegations of the complainant organization). The Committee notes that the text of the judgment does not consider the manner in which the trade union functions discharged by the victim as well as the alleged anti-union behaviour of the perpetrator may have influenced the commission of the offence. The Committee finally wishes to emphasize that the delays, accumulated in previous stages, in sending the text of the judgment as well as the absence of the requested information on the reasons why the criminal penalty imposed on the perpetrator of the attempted murder of Mr Tzoc had not been executed, had not enabled the Committee to conduct a final examination of the allegation earlier.
6. 311. With regard to the requested actions to assess the need to provide protection measures to Mr Tzoc, the Committee notes that the Government indicates that since the judicial decision of October 2004, Mr Tzoc never stated that he was in danger and did not file a complaint, hence there is no obvious reason why there would be a need to provide him with protection measures. The Committee further notes that, since the submission of the present complaint in August 2005, the complainant organization has not indicated that Mr Tzoc would need protection. In view of these circumstances, it will not pursue the examination of this aspect of the case.
7. 312. With regard to the allegations of death threats against members of the Itinerant Vendors’ Trade Union by members of the police, which were allegedly made in Antigua on 21 March 2005, the Committee recalls that, in the absence of a legal possibility to carry out an ex officio criminal investigation in this regard, it had requested that an internal investigation should be carried out within the police force. The Committee notes that the Government indicates that it is materially and legally impossible to carry out an investigation into allegations dating back to 2005 and that already gave rise to a criminal complaint that had to be dismissed because of the lack of specific elements in the complaint and because it was dropped by the complainants. While taking note of these elements, the Committee again underscores the importance of ensuring that, in the future, any report of anti-union violence, threats or harassment against members of the trade union movement should give rise to immediate, effective investigations by the competent public authorities and to appropriate protection measures.
8. 313. In general, the Committee again expresses the firm expectation that the commitments made by the Government under the roadmap adopted in October 2013 as part of the follow-up to the complaint made under article 26 of the ILO Constitution, and also the initiatives taken to implement it, including the tripartite agreement adopted by the national constituents in November 2017, will yield tangible results with respect to the allegations still pending in this case.

The Committee’s recommendations

1. 314. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With regard to the investigations into the murder of union leader Mr Julio Raquec Ishen, the Committee urges the Government to continue taking all necessary steps to ensure that all the perpetrators and instigators of this murder and also the motives for the crime are identified once and for all, and that guilty parties who are still alive are prosecuted and punished by the courts. The Committee requests the Government to keep it informed of any developments in this regard.
   • (b) The Committee once again expresses the firm expectation that the commitments made by the Government under the roadmap adopted in October 2013 as part of the follow-up to the complaint made under article 26 of the ILO Constitution, and also the initiatives taken to implement it, including the tripartite agreement adopted by the national constituents in November 2017, will yield tangible results with respect to the allegations still pending in this case.
   • (c) The Committee draws the Governing Body’s attention to the extremely serious and urgent nature of this case.