RIGHT OF ASSEMBLY AND FREEDOM OF ASSOCIATION. TRADE UNION RIGHTS1
A. General Considerations
1. As stated in Chapter I of this Report, Guatemala's Constitution upholds the right of assembly and freedom of association. It is thus established therein that “the right of peaceful assembly without arms is recognized. The rights of assembly and of public demonstration may not be restricted, limited, or abridged and the law shall regulate these rights for the sole purpose of guaranteeing public order.”
With respect to the freedom of association, the Constitution prescribes that the inhabitants of the Republic “have the right to associate freely for the various objectives of human life, for the purpose of promoting, exercising and protecting their rights and interests, especially those established by the Constitution.”2
The Fundamental Text also recognizes the right to form trade-union associations, establishing as one of the principles of social justice on which labor legislation is based the “right of workers and employers freely to organize for the exclusive purposes of economic protection and social advancement. These organizations and their leaders may not as such, take part in party politics.” With regard to government workers' associations, it is established that “associations formed by government workers may not participate in party political activities. Government workers may not strike.”3
2. Moreover, the Law on Elections and Political Parties upholds the right of political assembly and association. As regards the former, it is prescribed that no authority may prevent open-air demonstrations or meetings for campaign purposes from the time elections are called up to one day before election day, but the parties promoting them must request authorization from the respective departmental government at least 24 hours in advance; furthermore, meetings or demonstrations of different political groups may not be held in the same town on the same day unless they are supporting identical issues, and demonstrations for the purposes of electoral campaigning may not be held in public squares or roads during evening hours. With regard to the right of association, that law establishes that political parties that are governed by democratic principles and that adhere to the law may be freely organized and operated, and that any group of citizens can promote the formation of a political party as long as it fulfills the requirements of the law.4
Guatemala's Labor Code governs the right to form labor unions; it establishes that a labor union “is any permanent association of workers or employers or persons exercising an independent trade or profession (self-employed workers), formed solely for the study, improvement and protection of their common economic and social interests.” It further classifies unions as rural or urban, and stipulates that trade unions must always be governed by the democratic principles of respect for the will of the majority, secret ballot and one person, one vote and that persons indicated in the Law have “the right freely to form labor unions. Unions are qualified as corporate bodies capable of exercising rights and contracting obligations.”5
B. Validity of these rights in practice
1. Despite the legal concepts of the Guatemalan judicial system with respect to the right of assembly and freedom of association, these rights are in fact subject to violations and have been affected by the existing climate of violence in the country.6
2. The Commission has reviewed documents and information in its possession which indicate that both the right of assembly and freedom of association lack sufficient guarantees, and have been abridged by acts in which, according to those documents and information, the military and public security forces are implicated.7
A statement from the National Union of Attorneys based in New York and the Alianza Legal de la Raza addressed to the Commission in September 1979 following a visit by a joint mission from those agencies to Guatemala reached the following conclusions:
- The Government of Guatemala does not offer effective protection to workers or labor unions despite confirmation of the American Convention on Human Rights, which guarantees the freedom of association, and despite Conventions 87 and 98 of the International Labour Organisation, which protect the right to organize labor unions, the right to the legal recognition of those unions and the right to strike. Violations of trade-union rights range from the refusal to recognize labor unions, delays in trying cases involving violations of the labor law or the refusal to bring action, and refusal to prevent the dismissal of union organizers, to the killing of the leaders of the labor movement.
- The right of assembly, the right of expression and the right to participate in peaceful demonstrations are not respected. These rights are subjected to unreasonable and unjustifiable legal requirements such as the need to have legally responsible sponsors in order to hold public demonstrations. In addition, excessive force is used to disperse and break up public demonstrations and vengeful acts are committed against individuals whose sole crime is to have participated in the exercise of their rights.
- Insurmountable legal obstacles to the legal recognition of opposition parties are created. Weapons such as physical violence and assassination are used to prevent any opposition party, even those of moderate tendencies, from growing.
- Articles 1 and 16 of the American Convention on Human Rights guarantee the right to form political organizations, and prohibit discrimination on the basis of political beliefs. Despite this, the Guatemalan Constitution prohibits the existence of communist organizations and denies communists their political rights. (Constitution, Articles 27, 63 and 64). This discrimination has been in the Guatemalan Constitution since 1956. It is a discrimination that bears no relation to the legitimate interests of the Government and cannot be justified by any international law.
C. Some examples of violations of these rights
1. The Commission has taken cognizance of and processed several denunciations on violations of the right of assembly and freedom of association. The denunciations refer especially to the conditions of uncertainty in which trade union organizations operate, and to the persecution, imprisonment, abduction and killing of labor leaders.
2. Some cases have been processed by the Commission in accordance with its statutory provisions, and it has adopted resolutions on all of them.
3. Case Nº 4425: Killing, persecution and imprisonment of union leaders
The IACHR adopted the following resolution on this case at its 53rd session on June 25, 1981:
1. In a communication dated June 6, 1979, the following was denounced before the Inter-American Commission on Human Rights:
The Coca Cola Bottling Company in Guatemala City has had a history of violence against union activities; the extreme escalation of repression in recent months, however, including the killing of union leaders, has attracted the attention of international agencies that are dedicated to the issue of human rights. Trade union sources describe the violence as a coordinated effort on the part of the plant manager and its North American owner, John Clinton Trotter, to destroy the union.
Chronology of the escalation of violence at the
Bottling Company, October 1978 – April 1979
On October 16, 1978, Israel Márquez, Secretary General of the Trade Union, was machine-gunned to death when driving home. The attack, which he miraculously survived, completely destroyed his car windows. The report on this attack in “El Imparcial” quotes trade union sources, which refer to a discussion between union leaders and management that had taken place at the bottling company earlier that same day. According to the Trade Union Federation (CNT), “the workers were warned of what could happen to them.” According to union sources, after the attack on Márquez, a series of meetings were held at the Hotel Dorado Americano. On at least one occasion, towards the end of November, John Trotter and a group of plant managers met with Colonel Germán Chupina who is described in a union statement as “one of the principal authors of repression in Guatemala.” A few workers present at that meeting reported to the union that the management of the bottling company and the Chief of Police had decided that the trade union would be destroyed within six months.
In November 1978, the management of the bottling company published advertisements in the local press to recruit personnel assistants and security guards. In the advertisements, it is reported that experience working with security forces and in personal defense was a prerequisite for the job. As a result, three lieutenants and numbers of armed guards now patrol the premises, prominently displaying their arms. The three army lieutenants are Juan Francisco Rodas (who has worked at the military bases in Río Hondo), Edgar Gudiel Castro and Julio García. According to the “Nuevo Diario” of January 25, 1979, these three military officers now occupy the positions of personnel manager, storage operation supervisor and security chief.
On December 12, 1978, Pedro Quevedo, Financial Secretary of the Trade Union, was murdered. He was shot while seated in a company truck on his distribution route. News reports, such as that published in “El Imparcial” on December 13, 1978, state that he had received eight bullet holes in the throat and four in the face. Quevedo had been imprisoned on three different occasions for union activities. In his speech at the Annual Meeting of the Coca Cola Bottling Company, Márquez said that 8 days before the killing, he had been present at a meeting at which John Trotter threatened to have Quevedo killed. Eight members of the military police arrived on the premises early in the morning of December 12. Quevedo was murdered at around 12:30 p.m. Although it was customary to have two military police officers patrolling the premises at night, the military presence at the factory during the morning hours was an extremely rare occurrence. After hearing the news of the assassination at the premises, the workers went to the police telling them: “This is why you came to the plant this morning, you knew that Quevedo was going to be killed.” The police replied that, they had gone to the bottling company because of rumors of an attempted burglary. In addition, Márquez noted that several hours before the killing, all of the managers appeared to be unusually nervous.”
To quote trade union statements after Quevedo's death, “an intimidation campaign had started.” A list of deaths published by the Secret Anti-communist Army (one of the rightist death squads) included the names of the Executive Committee of the entire trade union and the advisory council. Threatening notes have also been sent to workers at their homes. The only source for obtaining the correct addresses of these workers was the bottling company. In addition, the workers were forced to sign blank sheets of paper, and petitions against the union.
An anonymous worker noted several attempts to dismantle the union in “Noticias de Guatemala” on January 22, 1979. He said that since the union was formed, Trotter had tried to destroy the organization. At the time of that interview, most of the workers at the Bottling Company were still union members. A union spokesman stated that in the past fifteen days, six of the ten union leaders had stepped down because of the increased repression and in response to consequent entreaties from family members. They were immediately replaced. In describing the difficulty of the situation where on the one hand workers had been offered better positions and salaries if they denounced the trade union, whereas on the other hand if they refused, they were threatened with dismissal or murder. He identified at least one specific threat on the life of an employee by Lieutenant Rodas.
On January 15, 1979, vehicles carrying foreign license plates (the type of vehicles used in killings by rightist organizations) were patrolling the grounds of the premises. On January 16, these same vehicles returned with two buses from the Model Police Squad. According to trade union sources, the Police entered the premises to take Márquez in. When Márquez reached the plant on the morning of January 16, a group of police officers tried to apprehend him, but he ran away and disappeared. His escape was aided by a friend who was driving behind him and picked him up in a small van. As the two continued in flight, the police fired several shots at the van in which they were travelling.
On January 19, 1979, advertisements appeared in the local newspapers denouncing the labor leader, Israel Márquez, as being a poor little union leader and as falsely representing the interests of the workers. It is alleged that it was one Víctor Godínez who sent to have the advertisement published.
Márquez said that a series of advertisements designed to defame him had been published and that all were paid for by the Company. The advertisements were published by the same advertising agency hired to promote Coca Cola beverages. From Márquez's viewpoint, the purpose of this campaign was to denigrate his character to such an extent that when he was finally killed, there would be no public outcry. Interviews published in “Noticias de Guatemala” on January 22, 1979 support the assessment that the union rank-and-file were unswerving in their faith in Márquez and that all the advertisements were fraudulent.
On January 22, the trade union published in several newspapers a full-page open letter referring to the paid notice of the 19th as a fraud. In addition, Víctor Godínez sent a sworn statement to journalists that he had never published any such advertisements, nor had he given authorization to have his name appear in any of them. The open letter also gives details of the history of repression against the union.
On January 24, 1979, an innocent man who had in error been identified as Israel Márquez was murdered when leaving the home of the union leader. His wife was seriously hurt in the armed attack, which involved machine guns. Manuel Antonio Moscoso Zaldaña, 27 years of age, and his wife had been married the previous month. Marcus told the ICCR that on the day of this killing, a group of eight police officers who had been patrolling the pant since the day of Quevedo's murder was reinforced by a corps of 20 men who arrived with machine guns. As had occurred on the day of the previous killings, this detail arrived on the premises several hours before the crime was committed.
On January 30, 1979, Israel Márquez and his wife sought refuge with their 10-month old son in the Embassy of Venezuela. The family remained at the Embassy for approximately one month before travelling to Costa Rica.
On March 13, 1979, Sonia Olivia, a union leader from the ACRICASA plant was arrested and interrogated for 12 hours by the “Judicial Police” or the detective squad. According to Yolanda de Aguilar, the attorney for the Trade Union Federation CNT, Sonia Olivia was informed by the police that they were going to kill Manuel López Balán, de new Secretary General for the Coca Cola Trade Union.
On March 19, 1979, “Noticias de Guatemala” reported that Lieutenant Juan Rodas had continued with his warnings to workers to leave the union.
On March 30, 1979, an attempt was made to abduct Yolanda de Aguilar the attorney for the CNT. When she managed to escape from her abductors by entering an establishment full of people, she was warned “you are safe now but sooner or later we are going to get you.”
On April 5, 1979, Manuel López Balán, who had replaced Israel Márquez as Secretary General of the Labor Union, was murdered. As in the case of Quevedo's death, the murder took place while he was on his distribution route. He was beaten with an iron tube and his throat was then cut from ear to ear. According to the “Nuevo Diario” (April 6, 1979), when another worker came to helpd Balán, one of the murderers beat him up and told him “I do not want to kill you... he is the one I want,” pointing to Balán. As in the case of Quevedo's death according to reports, the two murderers followed the company truck on motorcycles. Balán's body showed seventeen wounds.
Israel Márquez said that Manuel Balán had been run down by a man on a motorcycle shortly after assuming his post as Secretary General of the Trade Union. His leg was broken in the accident. Because of the nature of his injury, Balán was absent from work for one month. He was killed the second day after he went back to work. Like Márquez, Balán had received numerous threats to his life over the previous few months. In January 1979, Balán was told at a meeting in the office of the manager, Alfonso Riego, that: “If he wished to save his life there was still time to leave the trade union.”
On April 7, 1979, Manuel López Balán's father was arrested by 20 uniformed police officers, according to reports in newspapers in Guatemala.
On April 18, two of the three labor attorneys from the Trade Union Federation CNT were abducted at the airport in Guatemala City. According to news reports published in “La Nación” on April 19, they were not arrested by regular police officers.
Two weeks after Balán's murder, Marlon Mendizabal, 22 years of age, took office as the new Secretary General of the bottling company union. He immediately received warnings and threats from the plant manager. According to trade union sources, he was shown a list with the names of his closest relatives and their addresses and was subsequently tempted with the following proposition:
Don't be silly, give up your position. Don't you realize that we have the names of all those who are closest to you... remember that torture is extremely painful... You know the different types of torture... There is this method and this other, etc...
This verbal harassment was followed by his imprisonment by the police on April 30, 1979.
2. In a note dated June 18, 1979, the Commission transmitted to the Government of Guatemala the pertinent parts of the denunciation requesting that it provide the relevant information.
3. Subsequently, on May 7, 1980 the following additional information was received from the complaining parties:
At 10:00 a.m. on April 14, 1980, representatives of the Guatemalan Bottling Company Union presented to the labor court a request for discussion of a new collective bargaining agreement since the previous one had expired on February 2, 1980. In accordance with the laws, the judge of the labor court issued a resolution at that time which, in accordance with labor law, prohibits the dismissal of union members.
At 3:00 p.m. that same day, 28 workers, members of the union and 3 members of the leadership were dismissed.
On April 16, the three members of the leadership were reinstated.
The others have not been reinstated. Lieutenant Juan Francisco Rodas, a military officer on special duty acting as personnel manager of the company, made threats on the lives of all of them if they did not accept the dismissal.
On May 1 of this year, four union members were abducted: Arnulfo García, René Reyes, Ricardo García and Manuel de Jesús Gómez. The bodies of Arnulfo García who showed signs of torture and of René Reyes were found on May 2 and 3 respectively. The other two are still missing.
4. The Commission transmitted additional information to the Government of Guatemala in a note dated May 8, 1980. That note also asked the Government to provide any information it might consider pertinent.
5. In notes dated December 16, 1980 and April 20, 1981, the Commission again addressed the Guatemalan Government, renewing its request for information.
1. To date the Government of Guatemala has not replied to the Commission's repeated requests for information on this case.
2. Article 39 of the Regulations establishes the following:
1. The facts reported in the petition whose pertinent parts have been transmitted to the government of the state in reference shall be presumed to be true if, during the maximum period set by the Commission under the provisions of Article 31, paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To presume to be true on the basis of Article 39 of the Regulations, the facts denounced in the communications dated June 6, 1979 and May 7, 1980, concerning threats, intimidation, assaults and acts of violence against and unlawful dismissal of leaders and rank-and-file of the Coca Cola Bottling Company Union, and specifically, the shooting and attempted murder on October 16, 1978, of Mr. Israel Márquez, at that time Secretary General of the Trade Union, and the subsequent attempt to abduct him on January 16, 1979; the killings of Pedro Quevedo, Financial Secretary, on December 12, 1978, and of Mr. Manuel Antonio Moscoso Zaldaña on January 16, 1979; the attempted abduction of Yolanda Aguilar, attorney of the CNT on March 30, 1979; the killing of the new Secretary General of the Union, Mr. Manuel López Balán on April 5, 1979, followed by the arbitrary detention and imprisonment of Mr. Balán's replacement as Secretary General, Mr. Marlon Mendizabal, and the abduction on May 1, 1980 of four trade union members: Ricardo García, Manuel de Jesús Gómez, Arnulfo García and René Reyes, followed by the subsequent murder of the two latter.
2. To declare that the Government of Guatemala violated Articles 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Judicial Guarantees), 15 (Right of Assembly), 16 (Freedom of Association) and 25 (Judicial Protection) of the American Convention on Human Rights.
3. To recommend to the Guatemalan Government that it investigate the acts denounced, and that if appropriate, it apply sanctions against those responsible, and that it kindly communicate to the Commission any decision it adopts within a maximum of 60 days.
4. To communicate this resolution to the Government of Guatemala and to the denouncing parties.8
1 In its Article 15, the American Convention on Human Rights states the following: “Right of Assembly. The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedoms of others.” And in its Article 16, it states the following: “Freedom of Association. 1. Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes. 2. The exercise of this right shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals, or the rights and freedoms of others. 3. The provisions of this article do not bar the imposition of legal restrictions, including even deprivation of the exercise of the right of association, on members of the Armed Forces and the Police.”
2 Article 63 and 64 of the Constitution.
3 Articles 114, paragraph 12, and 199 of the Constitution.
4 Articles 20, 21 and 72 of the aforecited law.
5 Articles 206, 207, 209 and 210 of the Labor Code.
6 In its discussion of the labor movement in Guatemala, the Report of the Mission sent to that country by the International Commission of Jurists, referred to above, expresses the following views: “”Repression is directed more openly and vigorously towards groups and leaders that try to organize urban or rural workers. A bulletin published by the Secret Anti-communist Army [ESA] in January 1979 gave the names of 24 persons sentenced to death for 'organizing labor unions in factories with the intent to destroy certain places of work and organize groups of our unskilled young people...' That bulletin, Nº 6 gave the name of Oliverio Castañeda, one of the student leaders whose name figured on the first list published by the Secret Anti-communist Army in October 1978. Castañeda was machine-gunned to death near the Central Park in the capital city two days after the first list was published. Some of the union leaders whose names figured on the ESA list published in January are now in exile; among them, Israel Márquez, former Secretary General of the Coca Cola Bottling Co. Labor Union. On December 12, 1978, Manuel López Balán, 28 years of age, who had replaced Israel Márquez in the post, was murdered. Marlon Mendizábal, 22 years of age and Lopez's successor received threats on his life when he assumed the post, and was imprisoned by the police on April 30, 1979. On June 19, 1979, Silverio Vásquez, trade unionist at the Coca Cola Bottling Co. was murdered. In the meanwhile, members of Coca Cola's Labor Union have received a series of threats in and outside the factory from both official forces, such as the Mobile Military Police, and from Security Forces at the factory itself. These latter include some retired military personnel. Violence against labor unions has not decreased. On May 22, 1979, the Secretary General of the Private Security Guards' Union, which was on strike, was machine-gunned to death. In June, Benvenuto Serrano, Secretary General of the Bank Employees Union, was abducted; he has not been seen since. The violence is meted out on only to union leaders but to their lawyers as well. The most noteworthy example is of Mario López who was gunned to death in front of his house on June 8, 1977. López Larrave had been Dean of the Law School at the Universidad de San Carlos and had written many academic works on labor law. In February 1979, Manuel Andrade Roca, a labor lawyer, was murdered while leaving the premises of the Bar Association. On the night of his death, he had been nominated as a candidate for the office of president of the organization.”
7 The Report on the Situation of Human Rights in Guatemala prepared by Dr. Rafael Cuevas del Cid referred to above states the following: “The many abnormal circumstances in Guatemala in recent years have led popular organizations and the people in general to seek ways of manifesting clearly their unease, unrest, discontent or open repudiation; hence the increasing exercise of the rights of public assembly and demonstration (Article 63 of the Constitution; 20, paragraph 1 of the Declaration; and 15 of the Convention) which, as stated in the Constitution itself, 'may not be restricted, limited or abridged.' The growing power of popular organization became evident in the most impressive demonstrations of the past 25 years. In August 1977, following the killing of two young secondary-school students (Robin García and Leonel Caballeros), nearly 70,000 persons marched in a demonstration. Also indicative of popular protest was the demonstration of mourning at the funeral of Mario López Larrave, a university professor and resolute defender of the working class, after he was murdered on June 8, 1977; also the huge demonstration on June 8 of this year (condemning the killing of Panzós). Today this right has also been restricted. On Friday, August 2 of this year, the 'Model Squad' of the National Police broke up a demonstration protesting the killing of the leader Mario Mujia Córdoba. To do so 'legally,' the Government has had to resurrect an agreement of the Ubico Tyranny issued in 1933, which requires that before holding a demonstration, 'authorization' must be requested from the Departmental Government (the agreement still speaks of the 'political districts' of that era.) The most elementary interpretation of the constitutional provision brings to light the unconstitutional nature of this governmental decree which also abridges the right set forth in the Constitution, the legal corpus which takes precedence over all others (and we have already seen that this right may not be restricted nor abridged). Nor can arbitrary police action be defended on the grounds that the Law will regulate this right because the sole purpose of regulating that right, by constitutional mandate, is to safeguard public order. The case we are commenting on concerns an unarmed peaceful demonstration which in no way disturbed the public order. On the contrary, it was a genuine exercise of a right, and it was precisely the intervention by the police apparatus that undermined public order. The case must be mentioned as an example of the prevailing intolerance with regard to the exercise of civil and political rights. Authorization to demonstrate was denied on a number of occasions, using the pseudo-legal subterfuge and the 'solid argument' that the demonstration would disturb vehicle traffic (?).”
8 Dr. Francisco Bertrand Galindo disqualified himself from hearing and deciding this case, and said that he was doing so because he was in Guatemala when the acts it refers to are said to have occurred.