Rapport intérimaire - Rapport No. 197, Novembre 1979

Cas no 924 (Guatemala) - Date de la plainte: 14-FÉVR.-79 - Clos

1. 476. The Committee has already examined this case, at its May 1979 session, when it presented an interim report to the Governing Body and requested the Government to supply certain information.
2. 477. The Government has since sent a communication to the ILO dated 20 July 1979.
3. 478. Guatemala has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 479. In its complaint of February 1979 CLAT alleged that a number of trade union leaders had been killed, and that others had disappeared or taken refuge in embassies. It also stated that some had left the country because of repression against the trade union movement. CLAT alleged that extreme right-wing groups, such as the "Secret Anti-Communist Army" (ESA), murdered trade union leaders and spread terror by circulating the list of future victims.
2. 480. In its complaint of April 1979 WCL referred to the death of Manuel López Balán, General Secretary of the Trade Union of Workers of the "Embotelladora Guatemalteca, Anexos y Conexos" company of the Guatemalan subsidiary of the Coca-Cola company. On 5 May 1979, as Mr. López Balán was doing his delivery rounds in Zone 6 of Guatemala City, he was allegedly attacked and killed by persons unknown, who fled without being apprehended. According to WCL, the crime was not motivated by robbery, since the murderers did not make the slightest attempt to remove the takings. WCL described in detail the difficulties encountered in the formation of the abovementioned trade union owing to the hostility of the management. There was, it added, a climate of permanent confrontation between the management and the executive of the union. In a communication of May 1979 the President of WCL also referred to the imprisonment since 1978 of José Enrique Garcia Castellanos, an official of the union of the Guatemalan Social Security Institute.
3. 481. Finally, the complaints of both CLAT and WCL also referred to the deregistration by the Government of the workers' organisations ATRG, ANCEP and AGAE.
4. 482. In a communication of April 1979 the Government stressed that for some years the country had been in the throes of a struggle between clandestine and extremist political groups which fostered a climate of violence and terror and threatened the institutions of the State, regardless of the Government's socio-economic development and democratisation programmes. According to the Government the main objective of this struggle was to "destabilise" the Government, seize power and set up a totalitarian regime. It had claimed victims among militants and leaders in both factions.
5. 483. The Government added that it did not at present possess the means enabling it to repress and wipe out these groups, which were operating in relative impunity, but that it trusted that the investigations which were then being carried out would provide the basis for their dissolution and enable their members to be brought before the courts.
6. 484. As regards the withdrawal of legal personality from ATRG, ANCEP and AGAE, the Government stated that these associations did not respect the objectives for which they were set up according to their by-laws: instead of defending occupational interests, they participated actively in sectarian politics and were involved in subversive activities against the Constitutional regime.
7. 485. At its May-June 1979 session, the Governing Body, on the recommendation of the Committee:
   • (a) expressed its concern at the violence carried out against trade unionists which created a climate unfavourable to the free exercise of trade union activity and the free operation of organisations;
   • (b) requested the Government to communicate its observations on the allegations relating to the death of the trade unionist Manuel López Balán (indicating in particular whether an inquiry was being made into his death and, if so, the results of the inquiry) and the imprisonment of Jose Enrique Garcia Castellanos;
   • (c) likewise requested the Government to supply precise information on the procedure followed for the withdrawal of legal personality from the ATRG, ANCEP and AGAE organisations and on the precise facts which motivated this decision.
8. 486. In its communication of 20 July 1979 the Government states that it has at all times respected freedom of association and the right of the organisations to carry on their activities in full freedom, provided that they observe the law and refrain from unlawful acts. It states that, between 1 July 1978 and 30 June 1979, 80 new trade union executives were registered and 691 appointments of trade union officials approved.
9. 487. As regards the murder of the trade unionist Manuel Francisco López Balán, the Government states that an exhaustive inquiry has been made by the national police and the investigations section. The case was brought before the courts, which were informed that the witnesses refused to give evidence to the police or the courts, alleging that they had seen nothing on the day of the murder.
10. 488. As regards the withdrawal of legal personality from ATRG, ANCEP and AGAE, the Government explains that, in accordance with the legislation, the procedure followed was an administrative one. These organisations were not trade unions, but associations of employees in the public sector governed by the provisions of the Constitution, the Civil Service Act and the Civil Code and not by those of the Labour Code. Thus it was not necessary for their legal personality to be cancelled under a judicial procedure. This must be done under an administrative procedure.
11. 489. As regards the precise facts which motivated the withdrawal of legal personality, the Government refers to section 119 of the Constitution of the Republic and section 63 of the Civil Service Act. Under the first of these two provisions the associations formed by government servants may not engage in party politics, and government servants are not permitted to strike. Section 63 of the Civil Service Act stipulates that civil servants have the right to associate freely for occupational, co-operative, mutual benefit, social or cultural purposes, but that the associations formed by civil servants may not participate in political activities, nor may they strike.
12. 490. The Government states that the three organisations mentioned formed the basis of the "Council of Organisations of Government Servants", an organisation without legal personality which organised a strike lasting several days throughout the public administration. This action constituted the main reason for the withdrawal of their legal personality. Furthermore, it was found that these associations had direct links with subversive groups engaged in party politics.

B. B. The Committee's conclusions

1. 491. The Committee notes that the present cases comprise three sets of allegations: the murder of a trade unionist, the withdrawal of legal personality from three civil servants' organisations, and the arrest of a trade union leader.
2. 492. As regards the murder of Mr. Manuel Francisco López Balán, the Committee notes that an inquiry into this case was carried out by the national police and that it was brought before the courts. However, it was not possible to obtain any evidence regarding the circumstances in which the murder was committed.
3. 493. In these circumstances, the Committee can only express once again its concern at the gravity of the allegations made. It must also stress that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty. The Committee expresses the hope that the Government will take all necessary steps to ensure that trade union rights can be exercised in a climate of freedom and security.
4. 494. Regarding the withdrawal of legal personality from the three associations of civil servants, the Committee notes that these measures, which were of an administrative nature, were motivated primarily by the organisation of a strike by the associations concerned and by their links with subversive organisations.
5. 495. The Committee must recall in this connection that, whatever the reasons adduced for the withdrawal of legal personality from workers, organisations, measures of this kind, when taken by the administrative authorities, are contrary to the principle established in Article 4 of Convention No. 87, ratified by Guatemala, according to which such organisations shall not be liable to be dissolved by administrative authority. Furthermore, if this principle is to be properly applied, it is not sufficient for the law to grant the right of appeal against such administrative decisions; the latter should not take effect until the expiry of the statutory period for lodging an appeal or until the confirmation of such decisions by a judicial authority.,
6. 496. In the present case the information available to the Committee does not enable it to determine whether there is an appeal to the judicial courts against these decisions and, if so, whether the appeal has a suspensive effect. The Committee would like to obtain information on this point in order to enable it to come to definitive conclusions on this aspect of the case.
7. 497. Finally, the Committee notes that the observations of the Government on the arrest of Mr. Jose Enrique Garcia Castellanos have not yet been received.

The Committee's recommendations

1. 498. In these circumstances, the Committee recommends the Governing Body:
   • (a) as regards the murder of Mr. Manuel Francisco López Balán, to draw the attention of the Government to the considerations set forth in paragraph 493 above and to express the hope that the Government will take all necessary measures to ensure that trade union rights may be exercised in a climate of freedom and security;
   • (b) as regards the withdrawal of legal personality from the organisations ATRG, ANCEP and AGAE:
   • (i) to recall the principle set forth in Article 4 of Convention. No. 87, ratified by Guatemala, that workers' organisations shall not be liable to be dissolved by administrative authority;
   • (ii) to request the Government to state whether there is an appeal to the judicial courts against decisions taken by administrative authority and, if so, whether such appeal has a suspensive effect on the decisions;
   • (c) to request the Government to send its observations on the arrest of Mr. José Enrique Garcia Castellanos;
   • (d) to take note of the present interim report.