Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 409, Mars 2025

Cas no 3286 (Guatemala) - Date de la plainte: 03-JUIN -17 - Clos

Effect given to the recommendations of the committee and the Governing Body

1. 31. The Committee last examined this case, which refers to anti-union acts, criminal prosecution, bias on the part of the Public Prosecutor’s Office and violations of due process following the establishment of the Workers’ Union of the Santo Tomás de Castilla Free Industry and Trade Zone (SINTRAFE), at its March 2019 meeting [see 388th report, paras 362–395]. On that occasion, the Committee issued the following recommendations:
   • (a) With regard to the registration of the trade union and the alleged acts of interference, coercion and threats, the Committee hopes that the Government will conduct an impartial investigation into the reported occurrences and will inform the Committee of its findings. It also requests the Government to inform it of the final ruling on the application to overturn Administrative Decision No. 160-2016.
   • (b) With regard to the alleged violation of due process and bias on the part of the Public Prosecutor’s Office, the Committee requests the Government to send a detailed reply as soon as possible regarding the alleged violations of due process and of the right of defence, to ensure that Mr Tomás Lares López enjoys all judicial guarantees and his full right of defence in the criminal proceedings against him, and to inform the Committee of the final ruling of the Criminal Court for Drug Trafficking Offences and Environmental Crimes in the department of Izabal relating to the above-mentioned union leader.
   • (c) The Committee requests the Government to ensure that the investigation into the criminal complaint filed by the union, relating to alleged falsification and coercion, is conducted promptly and, if anti-union motives are established, that appropriate compensation is awarded.
   • (d) With regard to the alleged acts of extortion and threats against the union leaders during their detention, the Committee invites the complainant organization to send its detailed observations on this matter and requests the Government to provide information on any criminal complaint filed in relation to the reported occurrences.
   • (e) With regard to the criminal complaint for defamation against the union leader Mr Tomás Lares López, the Committee requests the Government to send information as soon as possible on the charges brought against this union leader and on the status of the complaint.
2. 32. The Committee notes the Government’s communications received, dated 15 May 2019, 25 September 2019, 8 October 2019, 30 January 2020, 17 February 2020, 18 February 2020, 2 December 2020, 2 February 2021, 5 May 2021, 7 May 2021, 24 May 2021, 15 February 2022, 16 December 2022, 12 September 2023 and 3 September 2024, which provide information relating to the above recommendations.
3. 33. With respect to the application to overturn Administrative Decision No. 160-2016 in which the Ministry of Labour and Social Welfare dismissed the appeal filed by the enterprise of the free trade zone against the registration of the trade union (second part of recommendation (a)), the Government indicates that: (i) the Labour and Social Welfare Court of First Instance in the department of Izabal rejected the action for annulment in a ruling of 24 February 2023; (ii) on 8 September 2023 the Mixed Chamber of the Appeal Court in the department of Izabal dismissed the appeal filed by the enterprise, fully upholding the contested ruling; and (iii) on 10 January 2024 the decision to close the proceedings became final.
4. 34. With regard to the alleged violation of due process and bias on the part of the Public Prosecutor’s Office, relating to the criminal proceedings against Mr Tomás Lares López for falsification of documents (recommendation (b)); the Government indicates that: (i) at the preparatory stage, the examining magistrate, as supervisor of the investigation, stated that there are no hearings during the proceedings if the accused does not have a defence lawyer, as due process is a constitutional right; (ii) the criminal complaint filed by the enterprise against the trade union leader was processed in Case No. MP282-2016-5254; and (iii) following the delay caused by the judges’ holiday period, the COVID-19 pandemic and the requests of the defence lawyer, the Criminal Court of First Instance for Drug Trafficking Offences and Environmental Crimes in the department of Izabal issued an acquittal in relation to Mr Tomás Lares López on 27 October 2022.
5. 35. With regard to recommendation (c), in which the Government is requested to ensure that the investigation into the criminal complaint filed by the union against the enterprise management for alleged falsification and coercion (Case No. MP001-2016-28562) is conducted promptly, the Government states that the Discrimination Investigation Agency of the Office of the Public Prosecutor for Human Rights dismissed the case in question on the grounds that the same acts were reported to the District Prosecutor of Izabal in Case No. MP282-2016-5254 (criminal complaint for the offence of falsification of documents against the trade union leaders mentioned in the previous paragraph). The Government states that both proceedings concern a complaint of forging of signatures during the establishment of the trade union of the enterprise and the parties involved are the same, albeit in opposite positions.
6. 36. With regard to the alleged acts of extortion and threats against the union leaders during their detention in the Criminal Rehabilitation Centre in Puerto Barrios from 18 to 26 September 2017 for the alleged falsification of documents (recommendation (d)), the Government states that verification of the ASTREA tool shows that there are no criminal complaints for acts of extortion and threats against the trade union leaders during the detention ordered in Case No. MP282-2016-5254.
7. 37. With regard to recommendation (e) on the criminal complaint for defamation filed by the enterprise against the union leader Mr Tomás Lares López for making statements through a mass media channel, the Government indicates that: (i) the proceedings were brought through Case No. C-18001-2016-00006; (ii) the Criminal Court of First Instance for Drug Trafficking Offences and Environmental Crimes in the department of Izabal issued an acquittal dated 16 November 2020; and (iii) on 14 December 2020 the case was closed.
8. 38. The Committee notes the various information provided by the Government and observes in particular that: (i) the decision of 2016 of the Ministry of Labour and Social Welfare overturning the administrative appeal filed by the enterprise against the registration of the trade union became final through court rulings of 2023 and 2024; (ii) the criminal proceedings brought against several trade union leaders for falsification of documents during the registration process of the trade union, which resulted in their provisional detention in 2017, led to an acquittal in 2023 for its secretary-general Mr Lares López (the proceedings in question had previously been closed with regard to the other trade union leaders); (iii) the criminal proceedings brought, in turn, by the trade union against the enterprise for the same charges (falsification of documents) were closed; (iv) the criminal proceedings for defamation brought against Mr Lares López led to an acquittal in 2020; and (v) the allegations of acts of extortion and threats against the union leaders during their provisional detention did not result in any charges. With regard to this last point, the Committee notes that the complainant organization did not provide the details requested.
9. 39. The Committee also notes that: (i) despite its recommendations, the Government does not indicate that it has conducted an independent investigation into the allegations of acts of interference, threats and coercion that occurred during the establishment of the trade union; (ii) nor is there any information that the complaint of coercion in the criminal proceedings brought by the union has led to specific investigative measures by the Public Prosecutor’s Office (the Government refers only to the closure of these criminal proceedings for reasons relating to the complaint of the offence of falsification of documents); and (iii) the court proceedings relating to the registration of the union and the complaint of falsification of documents against the secretary-general of the union only resulted in court decisions seven and six years later, respectively.
10. 40. The Committee recalls that any coercion of workers or trade union officers to revoke their union membership constitutes a violation of the principle of freedom of association, in violation of Convention No. 87 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1198] and that the exercise of trade union rights is incompatible with violence or threats of any kind and it is for the authorities to investigate without delay and, if necessary, penalize any act of this kind [see Compilation, para. 88].
11. 41. Noting with regret that such investigations have not been carried out in this case, and noting the lack of information on whether the trade union is currently functioning, the Committee urges the Government to ensure in future that allegations of anti-trade union acts, particularly in the context of the establishment and registration of trade union organizations, result in an immediate investigation by the competent authorities.
12. 42. In the light of the foregoing, taking into account the time lapsed since the presentation of the complaint and the absence of new information from the complainant, the Committee considers that the present case is closed and does not call for further examination.