OEA/Ser.L/V/II.53
REPORT
ON THE SITUATION OF HUMAN RIGHTS
CHAPTER
VIII RIGHT
OF ASSEMBLY AND FREEDOM OF ASSOCIATION. TRADE UNION RIGHTS1
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. WHEREAS:
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:
Article 39
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, RESOLVES:
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
[ Table of Contents | Previous | Next ] 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. |