Guatemala is a multiparty constitutional republic. On January 14, Alejandro Eduardo Giammattei Falla of the We’re Going for a Different Guatemala Party was sworn into office for a four-year term as president. International observers considered the presidential election held in 2019 as generally free and fair.
The National Civil Police, which is overseen by the Ministry of Government and headed by a director general appointed by the minister, is responsible for law enforcement in the country. The Ministry of National Defense oversees the military, which focuses primarily on operations in defense of the country, but the government also used the army to support the National Civil Police in internal security operations, as permitted by the constitution. Civilian authorities, at times, did not maintain effective control over the security forces. Members of security forces committed some abuses.
Significant human rights issues included: unlawful or arbitrary killings, including extrajudicial killings arranged by government officials; harsh and life-threatening prison conditions; arbitrary arrest and detention; serious problems with the independence of the judiciary; serious restrictions on the press, including violence, threats of violence, or unjustified arrests or prosecutions against journalists; widespread corruption; lack of investigation of and accountability for violence against women; crimes involving violence or threats of violence targeting persons with disabilities, members of indigenous groups, and lesbian, gay, bisexual, transgender, and intersex persons; and use of forced labor, including child labor.
Impunity continued to be widespread. Corruption, concerted efforts by organized criminal actors, and lack of political will made meaningful investigation and prosecution of crimes difficult.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
There were reports that the government or its agents committed arbitrary or unlawful killings. As of August 31, the Public Ministry, which is responsible for the prosecution of all criminal cases, as well as the Office of Professional Responsibility of the National Civil Police (PNC), reported two complaints of homicide by police, the same number of complaints as in 2019. The Public Ministry continued to investigate a case of alleged excessive use of force, in which video security surveillance captured PNC officers shooting and killing Edgar Ic Perez after COVID-19 curfew hours on June 17.
The nongovernmental organization (NGO) Unit for the Protection of Human Rights Defenders alleged that at least 14 members of rural and indigenous activist groups were killed or died in disputed circumstances between January and August. Some of the killings appeared to be politically motivated, and all the cases remained under investigation at year’s end (see section 6, Indigenous People). In 2019, 15 activists or human rights defenders were killed.
The national government’s prosecution of former intelligence chief Jose Mauricio Rodriguez Sanchez continued. Rodriguez Sanchez was accused of genocide against the Maya Ixil community during the country’s 36-year internal armed conflict (1960-96). On February 4, a military expert proposed by the Public Ministry testified in the case against Luis Enrique Garcia Mendoza, operations commander under former president Rios Montt. The testimony focused on the chain of command of the Ministry of Defense during that period, both as a means to provide expert witness against the defendants and to identify other officers that might have given the orders. Judge Jimmi Bremer of High-Risk Court C indicted Garcia Mendoza in November 2019 on charges of genocide and crimes against humanity.
The Public Ministry continued investigation of another case for genocide against the Maya Ixil community from the last months of former president Romeo Lucas Garcia’s government (1978-82). Three high-ranking military officers, Cesar Octavio Noguera Argueta, Manuel Callejas y Callejas, and Benedicto Lucas Garcia, were charged in this case. According to the ministry, the case involved a minimum of 32 massacres, 97 selected killings, 117 deaths due to forced displacement, 37 cases of sexual assault, and 80 cases of forced disappearance. Many victims were children. In November 2019 the courts found sufficient evidence in the Public Ministry’s preliminary investigation to order a deeper investigation. Judge Miguel Angel Galvez scheduled a hearing for September 1 to rule on whether there was sufficient evidence to bring the case to public trial against the three defendants, but the hearing was suspended. The defense filed a request for house arrest for Callejas y Callejas and Lucas Garcia due to the heightened risk of COVID-19 in prison facilities. Judge Galvez denied the request because the defendants’ charges made them ineligible for house arrest under the law. Callejas and Lucas were both previously convicted of serious crimes in the Molina Theissen case and were serving 58-year sentences.
There were no reports of new disappearances by or on behalf of government authorities. The Public Ministry continued to investigate and prosecute cases of forced disappearances from the internal armed conflict period. The government did not comply, however, with an order from the high-risk courts, which handle sensitive cases often risky for judges to take on, to create a national commission on the search for disappeared persons and a national registry of victims.
The CREOMPAZ case, named after the Regional Center for UN Peacekeeping Training Institute where a mass burial site for disappeared persons was found, continued for former military officers indicted in 2017 on charges of forced disappearance and crimes against humanity during the 1960-96 armed conflict. The courts needed to resolve several appeals and recusal motions filed in 2016 before a full trial could begin. The defense filed a request for house arrest for two former military officers indicted in the case, Byron Barrientos and Carlos Garavito, due to the heightened risk of COVID-19 in prison facilities. High-Risk Court A denied the request because the defendants’ charges made them ineligible for house arrest under the law. Former congressman Edgar Justino Ovalle Maldonado, also charged in the case, remained in hiding after the Supreme Court lifted his immunity from prosecution in 2017.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits torture and other cruel, inhuman, or degrading treatment or punishment, but there were reports alleging government workers employed them at the Federico Mora National Hospital for Mental Health (see section 6). The Office of the UN High Commissioner for Human Rights (OHCHR) noted that documentation and reporting mechanisms for torture and other cruel, inhuman, or degrading treatment or punishment remained weak, thereby hindering a full understanding of the prevalence of the problem.
According to the Conduct in UN Field Missions online portal, in February an allegation was made that Guatemalan peacekeepers deployed to a UN peacekeeping mission, raped a child. As of October the government was investigating the allegation.
Impunity within the PNC was not a pervasive and systemic issue. Impunity from prosecution for serious crimes within the PNC has generally been in decline for more than a decade, with several high-profile convictions of PNC officers now serving prison sentences. Lesser crimes of negligence and bribery by officers continued, however, with few convictions. Negligence by officers was largely the result of a lack of sufficient training. The law requires officers to hold at least a high school degree, but they often had much less, and some individuals had as little as six months of police training before being sent out on the streets. Small monthly salaries of approximately 4,000 quetzals ($535) created an incentive to extort bribes. A large number of PNC officers were removed from the force over the past three years based on allegations of bribery. There were also anecdotal reports that the military extorted bribes and arbitrarily and temporarily detained persons when acting in support of the PNC. These instances seemed scattered and not related to military orders.
Prison and Detention Center Conditions
Prison conditions were harsh and potentially life threatening, with multiple instances of inmates killing other inmates. Sexual assault, inadequate sanitation, poor medical care, and significant overcrowding placed prisoners at significant risk. Authorities occasionally held pretrial detainees together with convicted prisoners, juveniles with adults, and male with female detainees.
Physical Conditions: Prison overcrowding was a problem. As of October 8, according to prison authorities, there were 25,691 inmates, including 2,883 women, held in facilities designed to hold 6,997 persons. To ease prison overcrowding, the Rehabilitation Sub-Directorate of the penitentiary system processed 1,519 early release requests from April to October. Better coordination between sentencing judges and defense attorneys led to 750 inmates being granted early release by the courts during the same period.
As of September 22, there were 657 juvenile inmates in four traditional detention centers and the halfway house, which were designed for 549 inmates. Another 1,242 juvenile inmates were held in three new alternative measures facilities. Despite a reduction in overcrowding, there were 271 inmates in the Las Gaviotas juvenile detention facility, designed for 175 individuals. The courts had not sentenced approximately 28 percent of juvenile inmates held in detention.
Physical conditions including sanitation facilities, medical care, ventilation, temperature control, and lighting were inadequate. Prisoners had difficulty obtaining potable water, complained of inadequate food, and often had to pay for additional sustenance. Illegal drug sales and use were widespread.
Prison officials acknowledged safety and control problems, including escape attempts, gang fights, inability to control the flow of contraband goods into prisons, inmate possession of firearms and grenades, and the fabrication of weapons. Prisoners conducted criminal activity both inside and outside of prisons. Media reported that transnational criminal gangs and drug trafficking groups controlled major prisons. According to prison authorities, from January through August 31, at least eight inmates died of unnatural causes while in prison. During the COVID-19 pandemic, at least 39 Barrio 18 gang leaders negotiated their transfer to Fraijanes II, the only detention center with a full clinic for treatment of COVID-19. When prison officials began sending Barrio 18 leaders to other facilities to prevent them from operating the gang from Fraijanes II, gang members took 10 prison guards hostage in El Infiernito Prison and four prison guards hostage at the preventive detention center in zone 18, demanding the return of their leaders to Fraijanes II. In both cases the prison guards were released after 24 hours.
Media and NGOs reported female inmates faced physical and sexual abuse. Female inmates reported unnecessary body searches and verbal abuse by prison guards. Children younger than age four could live in prison with their mothers, but the penitentiary system provided inadequate food for young children, and many suffered from illness. Lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights groups stated that other prisoners often sexually assaulted LGBTI individuals, and there were insufficient facilities to protect LGBTI individuals in custody. NGOs claimed admittance procedures for LGBTI prisoners were not implemented, noting particular concern regarding procedures for transgender individuals.
Administration: While the law requires authorities to permit prisoners and detainees to submit complaints to judicial authorities without censorship and request investigation of credible allegations of inhuman conditions, authorities failed to investigate most allegations or to document the results of such investigations.
Independent Monitoring: The government permitted visits by local and international human rights groups, the Organization of American States, public defenders, and religious groups. The Office of the Human Rights Ombudsman (PDH) and the National Office for the Prevention of Torture, both independent government bodies responsible for ensuring that the rights and wellbeing of prisoners are respected, also periodically visited prison facilities.
Improvements: The Secretariat of Social Welfare improved the juvenile system by opening a training academy and adding a K-9 unit to search for narcotics and cell phones. The adult penitentiary system moved toward a new correctional model that includes polygraphs and training for prison staff. On October 9, the government announced the creation of a unit for electronic monitoring to ease prison overcrowding through greater use of house arrest.
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention, but there were credible reports of extrajudicial arrests, illegal detentions, and denial of timely access to a magistrate and hearing as required by law. Suspects are entitled to challenge in court the legal basis or arbitrary nature of their detention. There was no compensation for those ruled unlawfully detained.
Arrest Procedures and Treatment of Detainees
The law requires presentation of a court-issued warrant to a suspect prior to arrest unless police apprehend a suspect while in the act of committing a crime. Police may not detain a suspect for more than six hours without bringing the case before a judge. Authorities did not regularly respect this right. After arraigning suspects, the prosecutor generally has three months to complete the investigation if the defendant is in pretrial detention and six months to complete the investigation if the defendant is granted house arrest. The law prohibits the execution of warrants between 6 p.m. and 6 a.m. unless the government has declared a state of siege. Judges may order house arrest for some suspects. The law provides for access to lawyers and bail for most crimes. The government provides legal representation for indigent detainees, and detainees have access to family members. A judge has the discretion to determine whether bail is permissible for pretrial detainees.
Arbitrary Arrest: As of August 31, the PNC Office of Professional Responsibility had received two complaints of illegal detention by police, compared with 26 in 2019. Reports indicated police ignored writs of habeas corpus in cases of illegal detention, particularly during neighborhood antigang operations.
Pretrial Detention: As of October prison system records indicated 49 percent of prisoners were in pretrial detention, approximately the same percentage as in 2019 despite court closures due to COVID-19. The law establishes a one-year maximum for pretrial detention, regardless of the stage of the criminal proceeding, but the court has the legal authority to extend pretrial detention without limits as necessary. Authorities regularly held detainees past their legal trial-or-release date. Lengthy investigations and frequent procedural motions by both defense and prosecution often led to lengthy pretrial detention, delaying trials for months or years. Observers noted the slow pace of investigations and lack of judicial resources hampered efforts to reduce pretrial detention and illegal incarceration. Authorities did not release some prisoners after they completed their full sentences due to the failure of judges to issue the necessary court order or other bureaucratic delays.
e. Denial of Fair Public Trial
The law provides for an independent judiciary. The judicial system generally failed to provide fair or timely trials due to inefficiency, corruption, and intimidation of judges, prosecutors, and witnesses.
Judges, prosecutors, plaintiffs, and witnesses continued to report threats, intimidation, and surveillance, most often from drug trafficking organizations. From January through December 11, the Special Prosecutor’s Office for Crimes against Judicial Workers and Unionists received 194 complaints of threats or aggression against workers in the judicial branch, compared with 70 from January to August 2019.
The existing selection process for the election by the congress of 13 Supreme Court and 135 appellate court magistrates suffered widespread manipulation of selection committees by politicians, judicial operators, and other influential citizens, resulting in a judiciary that lacked full independence. In September 2019 the Constitutional Court halted the selection process for Supreme Court and appellate court magistrates, ruling that formal evaluation procedures were not followed within the selection committees. The selection committees provided a list to congress of 270 candidates for the appellate courts on February 14 and a list of 26 candidates for the Supreme Court on February 19. Public Ministry investigations found Gustavo Alejos, former chief of staff under President Alvaro Colom in prison on corruption charges, accepted at least 20 visits from officials associated with the selection process in his hospital ward on February 12-16. The Constitutional Court issued a final ruling on May 6 requiring removal of candidates associated with Gustavo Alejos and a voice vote for each position in congress. The new magistrates should have taken office in October 2019. As of November 30, congress had not started the election of judges, and the sitting Supreme Court and appellate court judges remained in their positions.
On June 25, the Supreme Court granted an immunity review/impeachment against four Constitutional Court magistrates and sent the case to congress for further action and a plenary session vote. The Constitutional Court then granted an injunction against the Supreme Court that ordered congress to halt its proceedings. On June 28, Congress responded by filing a criminal complaint against the four Constitutional Court magistrates. Civil society organizations largely interpreted impeachment to be a retaliatory measure against Constitutional Court magistrates that stood in the way of influence peddling in the selection of magistrates.
The constitution provides for the right to a fair and public trial, the presumption of innocence, the defendant’s right to be present at trial, and the right to legal counsel in a timely manner. The law requires the government to provide attorneys for defendants facing criminal charges if the defendant cannot find or afford an attorney. Defendants and their attorneys may confront adverse witnesses and present their own witnesses and evidence. The law provides for “abbreviated processing,” similar to plea bargaining, for minor offenses with short-term prison sentences and the right of appeal. Three-judge panels render verdicts. The law provides for oral trials and mandates free language interpretation for those needing it; however, interpreters were not always available, including for indigenous victims in the high-risk courts. Officials conduct trials in Spanish, the official language, although many citizens speak only one of the 23 officially recognized indigenous languages.
The Public Ministry, acting independently of the executive branch but dependent on funding that goes through congress, may initiate criminal proceedings on its own or in response to a complaint. Private parties may participate in the prosecution of criminal cases as plaintiffs.
Most courts closed at the outbreak of COVID-19 in mid-March while the judicial system created sanitation protocols and amended regulations to allow virtual hearings. Courts began reopening in June, with individual judges allowed to decide whether to return to work and whether to hold court virtually. The judicial system reported 40,000 hearings were cancelled by June. The system was working through the backlog, but as a result of the closure, conviction rates for most crimes were lower than in 2019.
International and domestic observers considered the number of judges insufficient. Lack of sufficient personnel, training, and evidence hampered Public Ministry prosecutors’ ability to bring cases to trial.
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
Individuals and organizations have access to administrative and judicial remedies to submit lawsuits seeking damages for, or cessation of, a human rights violation or other alleged wrongs. While the judiciary was generally impartial and independent in civil matters, it suffered from inefficiencies and a legal system that often permits spurious complaints.
Negotiations between the government and families affected by the construction of the Chixoy hydroelectric dam continued. As of October the government had paid approximately 99 percent of the 200 million quetzals ($26 million) in individual reparations to families affected by the dam. During the dam’s construction from 1975 to 1985, more than 400 individuals died and thousands were displaced.
f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, and the government generally respected these prohibitions.
Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
Birth Registration: Children derive citizenship by birth within the country or from their parents. UNICEF described low birth registration as a “serious problem,” and UNHCR reported problems in registering births were especially acute in indigenous communities due to inadequate government registration and documentation systems. Lack of registration restricted children’s access to some public services and created conditions that could lead to statelessness.
Education: While primary education is free and compulsory through age 15, access was limited in many rural areas; education through the secondary level is not obligatory. International observers noted boys were prioritized for high school education in rural communities due to the need to travel long distances and girls’ perceived value in the home. UNICEF criticized the government’s education plan during the COVID-19 pandemic, citing its exclusively distance-learning education plan as unrealistic and discriminatory against most indigenous children, who lacked access to stable internet connections and computers.
Child Abuse: Child abuse remained a serious problem. A unit under the Office of the Special Prosecutor for Crimes against Children and Adolescents handled child abuse cases. The Public Ministry opened an integrated 24-hour care model providing medical, psychosocial, and legal support to children and adolescent victims of violence. The ministry reported 4,001 reports of abuse of minors of all types, approximately 3,000 fewer than in 2019. The ministry reported 14 convictions for child abuse from January through August, compared with 54 during the same period in 2019. Closure of the courts for COVID-19 affected convictions for these cases.
NGOs supporting at-risk youth reported adolescents detained by police were subject to abusive treatment, including physical assaults.
Child, Early, and Forced Marriage: The legal age for marriage is 18. There continued to be reports of early and forced marriages in some rural indigenous communities and in the Lev Tahor religious community, but the National Registry of Persons reported no attempted registration of underage marriage.
Sexual Exploitation of Children: The law provides sentences ranging from 13 to 24 years in prison, depending on the victim’s age, for engaging in sex with a minor. The minimum age of consensual sex is 18.
The law prohibits child pornography and establishes penalties of six to 10 years in prison for producing, promoting, and selling child pornography and two to four years’ imprisonment for possessing it. The Public Ministry and the PNC conducted several raids against alleged online child pornography networks. The Regional Unit against Trafficking in Persons, responsible for eight departments in the Western Highlands and launched in 2018, expanded the government’s investigative capacity against child pornography offenders. The commercial sexual exploitation of children, including child sex tourism, remained a problem, including in privately run orphanages.
Displaced Children: Criminals and gangs often recruited street children, many of them victims of domestic abuse, for purposes of theft, extortion, prostitution, transporting contraband, and conducting illegal drug activities.
Institutionalized Children: More than 500 children and adolescents lived in shelters operated by the Secretariat for Social Welfare (SBS). In 2019 the Secretariat against Sexual Violence, Exploitation, and Trafficking in Persons transferred control of three shelters to the SBS, as mandated by the government. Observers noted the SBS responsibly maintained and improved the shelters despite fears from human rights observers that the transfer happened too soon and the SBS was not prepared to handle control of the shelters.
Overcrowding was common in both private and SBS shelters, and government funding for orphanages remained limited. Local and international human rights organizations, including Disability Rights International, raised concerns that child abuse was rampant. The OHCHR reported Hogar Esperanza, a private shelter for orphans and child victims of violence, sheltered children with disabilities but had no specialists able to care for them. The OHCHR also reported Hogar Esperanza was housing children in spaces that resembled cages. The OHCHR stated private shelters were often better than SBS shelters, but in cases like Hogar Esperanza, there was a clear need for reform to care adequately for children with disabilities.
Former SBS secretary Carlos Rodas and former deputy secretary for protection and shelter services Anahi Keller remained in pretrial detention with four others on charges of murder, abuse of authority, breach of duty, and abuse against minors following the deaths of 41 girls in a 2017 fire at the Hogar Seguro orphanage. As of October the case remained locked in a series of unresolved appeals and delays. The Constitutional Court ruled in July that the court in charge of the trial must accept evidence on the nature of the fire that was previously rejected in 2018. Some nongovernment analysts noted the judges might be intentionally delaying the Hogar Seguro case to wait for the new appeals court judges to be appointed, a process delayed since 2019. There were also accusations the judges intentionally delayed the case because the defendants were close to former president Jimmy Morales; several judges recused themselves from the case amid allegations of bias in favor of the defendants. The government did not make significant structural changes to the national system following the Hogar Seguro fire.
International Child Abductions: The country is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at .
The government’s National Institute of Statistics estimated indigenous persons from 24 ethnic groups made up 44 percent of the population. The law provides for equal rights for indigenous persons and obliges the government to recognize, respect, and promote the lifestyles, customs, traditions, social organizations, and manner of dress of indigenous persons. The government does not, however, recognize particular indigenous groups as having a special legal status provided by national law.
Indigenous communities were underrepresented in national politics and remained largely outside the political, economic, social, and cultural mainstream. This was mainly due to limited educational opportunities (contrary to law), limited communication regarding their rights, and pervasive discrimination. Government agencies dedicated to supporting indigenous rights lacked political support. These factors contributed to disproportionate poverty and malnutrition among most indigenous populations.
Indigenous lands were not effectively demarcated, making the legal recognition of titles to the land problematic. Indigenous rights advocates asserted that security authorities’ lack of familiarity with indigenous norms and practices engendered misunderstandings.
Indigenous representatives claimed actors in a number of regional development projects failed to consult meaningfully with local communities. In some cases indigenous communities were not able to participate in decisions affecting the exploitation of resources in their communities, including energy, minerals, timber, rivers, or other natural resources. They also lacked effective mechanisms for dialogue with the state to resolve conflicts.
The Russian conglomerate Solway, which bought the Fenix nickel mine in Izabal Department in 2014, continued to stand accused of violence against indigenous activists and illegal extraction of undeclared materials. Observers in Izabal reported that as of September, the mine continued operations despite the 2019 court order to suspend activities. Observers reported that Solway employees were giving baskets of food and other bribes to locals to keep them from protesting the mine, as protests routinely disrupted mine operations. Observers also reported Solway was believed to have bribed municipal officials in El Estor to keep news of a COVID-19 outbreak on the mine compound from becoming public. The 2019 Constitutional Court order required the provisional closure of the mine until the Ministry of Energy and Mines conducted consultations compliant with Convention 169 of the International Labor Organization (ILO) with local communities.
Xinka authorities reported the court-ordered consultations were not progressing in regards to the San Rafael mine. In 2018 the Constitutional Court ordered the Ministry of Energy and Mines to hold ILO Convention 169-compliant consultations with Xinka populations and upheld the suspension of the operating license of the San Rafael Mine until after conclusion of the consultations.
Section 7. Worker Rights
a. Freedom of Association and the Right to Collective Bargaining
The law provides for the right of workers, with the exception of security force members, to form and join trade unions, conduct legal strikes, and bargain collectively. The law, however, places some restrictions on these rights. For example, legal recognition of an industrywide union requires that the membership constitute a majority of the workers in an industry and restricts union leadership to citizens. Ministries and businesses are required to negotiate only with the largest union, as determined by annual membership. The law prohibits antiunion discrimination and employer interference in union activities and requires employers to reinstate workers dismissed for organizing union activities. A strike must have the support of the majority of a company’s workforce. Workers are not restricted to membership in one union or one industry.
The president and cabinet may suspend any strike deemed “gravely prejudicial to the country’s essential activities and public services.” The government defined “essential services” more broadly than international standards, thus denying the right to strike to a large number of public workers, such as those working in education, postal services, transport, and the production, transportation, and distribution of energy. Public employees may address grievances by means of conciliation for collective disputes and arbitration directly through the labor courts. For sectors considered essential, arbitration is compulsory if there is no agreement after 30 days of conciliation. During the six successive states of calamity declared between March and September 30 due to the COVID-19 pandemic, no union attempted a strike, although were strikes expressly prohibited. The Solidarity Center said the trade union leadership was largely inactive, and only one member of the National Confederation of Christian Trade Unions’ labor observatory continued substantive work during the pandemic.
The law prohibits employer retaliation against workers engaged in legal strikes. If authorities do not recognize a strike as legal, employers may suspend or terminate workers for absence without leave. A factory or business owner is not obligated to negotiate a collective bargaining agreement unless at least 25 percent of workers in the factory or business are union members and request negotiations. Once a strike occurs, companies are required to close during negotiations. Strikes were extremely rare, but work stoppages were common.
The government did not effectively enforce the law. Government institutions, such as the Ministry of Labor and the labor courts, did not effectively investigate, prosecute, or punish employers who violated freedom of association and collective bargaining laws. Penalties were not commensurate with those for other laws involving denials of civil rights, such as discrimination. Labor courts also failed to compel compliance with reinstatement orders, including payment of back wages, for workers illegally dismissed for engaging in union activities. The Public Ministry was ineffective in responding to labor court referrals for criminal prosecution in cases where employers refused to comply with labor court orders. Like other courts, the labor courts also largely closed from March to June due to COVID-19.
The Ministry of Labor has the authority to sanction employers for violating union and collective bargaining rights. Business groups complained the time frame to investigate and verify compliance with Ministry of Labor remediation orders was too short and resulted in more cases being referred to the labor courts without an opportunity to conciliate. Worker representatives reported no significant improvement in compliance with the law as a result of the new sanction authority, noting that the inspectorate emphasized collection of fines, which now go to the labor inspectorate, over remediation of the underlying violations. Lack of information about the law’s implementation made it difficult to assess its impact on improving labor law enforcement.
The Unit for Crimes against Unionists within the Office of the Special Prosecutor for Human Rights in the Public Ministry was responsible for investigating attacks and threats against union members as well as for noncompliance with judicial orders in labor cases. Staffing for the unit remained stagnant, and successful prosecutions remained a challenge exacerbated by the pandemic.
The National Tripartite Commission on Labor Relations and Freedom of Association encouraged social dialogue between the Ministry of Labor, unions, and businesses, and monitored and facilitated implementation of the 2013 ILO roadmap and its 2015 indicators.
Three subcommissions established under the National Tripartite Commission–on legislation and labor policy, on mediation and dispute settlement, and on implementation of the roadmap–held meetings during the year. In November the subcommission on implementation of the roadmap presented its full report in Geneva. The mediation and dispute settlement subcommission developed the capacity of governmental, union, and business members to mediate labor conflicts, with the ILO providing technical support and training. The subcommission on labor and legislation made a diagnostic analysis of labor law and drafted reforms.
Prior reports demonstrated a lack of progress in all nine elements of the roadmap except sanctions on labor violations. After being inactive in the first quarter of the year, the National Tripartite Commission met virtually after March. The Ministry of Government did not convene the Interagency Committee to Analyze Attacks against Human Rights Defenders, including trade unionists, on a regular basis due to the pandemic. On October 26, the Ministry of Government reconvened the committee through a published ministerial agreement. Two days later, and without explanation, the committee was closed again through another ministerial agreement.
The country did not demonstrate measurable progress in the effective enforcement of its labor laws, particularly those related to freedom of association and collective bargaining. Labor officials pointed to the pandemic as the reason for lack of enforcement. Violence and threats against trade unionists and labor activists remained serious problems, although COVID-19 prevented serious attempts to document cases, and much of the formal sector was inactive from March through September. From January to September, the Solidarity Center registered three violent attacks, 13 death threats, and 10 acts of criminalization and defamation against trade unionists and labor activists. Authorities did not thoroughly investigate most acts of violence and threats and often discarded trade union activity as a motive from the outset of the investigation, allowing these acts to go unprosecuted. Several labor leaders reported death threats and other acts of intimidation. The Special Prosecutor’s Office for Crimes against Judicial Workers and Unionists reported that by December 11, it had received 244 complaints of crimes or offenses against trade unionists and labor activists compared with 487 complaints from January to August 31, 2019.
Procedural hurdles, restrictions on and delays in forming unions, and impunity for employers rejecting or ignoring court orders limited freedom of association and collective bargaining. Government statistics on attempted union registrations indicated most registrations were initially rejected, and when they were issued, it was after the legally established period. In addition credentials of union leaders were regularly rejected and delayed. As a result union members were left without additional protections against antiunion retaliation.
Employers routinely resisted attempts to form unions, delayed or only partially complied with agreements resulting from direct negotiations, and ignored judicial rulings requiring the employer to negotiate with recognized unions. There were credible reports of retaliation by employers against workers who tried to exercise their rights, including numerous complaints filed with the Ministry of Labor and the Public Ministry alleging employer retaliation for union activity. Common practices included termination and harassment of workers who attempted to form unions, creation of illegal company-supported unions to counter legally established unions, blacklisting of union organizers, threats of factory closures, and deliberate failure to register unionized workers for certain government benefits. Local unions reported businesses used fraudulent bankruptcies, ownership substitution, and reincorporation of companies to circumvent legal obligations to recognize newly formed or established unions, despite legal restrictions on such practices.
b. Prohibition of Forced or Compulsory Labor
The law prohibits all forms of forced or compulsory labor. The government failed to enforce the law effectively. Reports persisted of men and women subjected to forced labor in agriculture and domestic service. Penalties were not commensurate with those for other analogous serious crimes, such as kidnapping. Criminal penalties for forced labor range from eight to 18 years’ imprisonment and a fine. The government has specialized police and prosecutors who handle cases of human trafficking, including forced labor, although local experts reported some prosecutors lacked adequate training. There were also reports of forced child labor (see section 7.c.).
c. Prohibition of Child Labor and Minimum Age for Employment
The law does not prohibit all of the worst forms of child labor. The Ministry of Labor regulations set the minimum age for employment at 15 years. The law bars employment of minors younger than age 15, but it also allows the Ministry of Labor to authorize children younger than 15 to work in exceptional cases. The ministry’s inspectorate reported it did not authorize any exceptions during the year. The law prohibits persons younger than 18 from working in places that serve alcoholic beverages, in unhealthy or dangerous conditions, at night, or beyond the number of hours permitted. The legal workday for persons younger than 14 is six hours; for persons 14 to 17, it is seven hours. Child labor was nonetheless prevalent in the agricultural sector, in dangerous conditions, and with parents’ knowledge and consent.
The Ministry of Labor’s Child Worker Protection Unit is responsible for enforcing restrictions on child labor and educating minors, their parents, and employers on the rights of minors. Penalties were not commensurate with those for analogous serious crimes, such as kidnapping. The government did not effectively enforce the law, a situation exacerbated by the weakness of the labor inspection and labor court systems. The government devoted insufficient resources to prevention programs. During restrictions imposed due to the pandemic, the Protection Unit largely worked from home, ineffectively enforcing the law.
The NGO Conrad Project Association of the Cross estimated the workforce included approximately one million children ages five to 17. Most child labor occurred in rural indigenous areas of extreme poverty. The informal and agricultural sectors regularly employed children younger than 14, usually in small family enterprises, including in the production of broccoli, coffee, corn, fireworks, gravel, and sugar. Indigenous children also worked in street sales and as shoe shiners and bricklayer assistants. An estimated 39,000 children, primarily indigenous girls, worked as domestic servants and were often vulnerable to physical and sexual abuse and sex trafficking. Traffickers exploited children in forced begging, street vending, and as street performers, particularly in Guatemala City and along the border with Mexico. Traffickers particularly targeted indigenous individuals, including children, for forced labor, including in tortilla-making shops. Criminal organizations, including gangs, exploited girls in sex trafficking and coerced young males in urban areas to sell or transport drugs or commit extortion.
d. Discrimination with Respect to Employment and Occupation
The law explicitly prohibits discrimination with respect to employment or occupation based on race, color, sex, religion, political opinion, national origin or citizenship, age, and disability. The government did not effectively enforce the law and related regulations. Penalties were not commensurate with laws related to civil rights, such as election interference. Discrimination in employment and occupation occurred. Anecdotally, wage discrimination based on race and sex occurred often in rural areas.
e. Acceptable Conditions of Work
The law sets national minimum wages for agricultural and nonagricultural work and for work in garment factories. The minimum wage for agricultural and nonagricultural work and for work in export-sector-regime factories did not meet the minimum food budget for a family of five.
The legal workweek is 48 hours with at least one paid 24-hour rest period. Workers are not to work more than 12 hours a day. The law provides for 12 paid annual holidays and paid vacation of 15 working days after one year’s work. Daily and weekly maximum hour limits do not apply to domestic workers. Workers in the formal sector receive the standard pay for a day’s work for official annual holidays. Time-and-a-half pay is required for overtime work, and the law prohibits excessive compulsory overtime.
The government sets occupational health and safety (OSH) standards that were inadequate and not current for all industries. The government did not effectively enforce OSH laws. Penalties for OSH violations were not commensurate with those for crimes such as negligence. The situation worsened during the pandemic. Many manufacturing facilities, including textile and clothing manufacturing, as well as call centers were exempted from otherwise strict lockdown protocols within days of the March state of calamity. The press reported numerous outbreaks in such facilities until the end of August, when mask usage increased and sanitary measures were properly implemented in the workforce. Among the factories affected was KP Textiles, a garment factory supplying GAP; American Eagle; and Amazon, where more than 200 workers tested positive for COVID-19 and whose owners originally refused to take precautions or allow labor inspectors to enter. While the factory eventually was inspected and shut down, it opened again and was not fined. The law does not provide for the right of workers to remove themselves from situations that endanger health or safety without jeopardy to their employment.
Inspectors often lacked vehicles or fuel to carry out inspections, and in some cases they failed to take effective action to gain access to worksites in response to employers’ refusal to permit labor inspectors access to facilities. Inspectors were encouraged to seek police assistance as required. Inspections were generally not comprehensive, and if complaint driven, focused on investigating the alleged violation rather than attempting to maximize limited resources to determine compliance beyond the individual complaint. From March to early April, Ministry of Labor inspections were suspended. Approximately half the unit returned in April and focused on inspecting possible violations of COVID-19 guidelines and hygiene. By August inspectors had returned to normal operations but with a large backlog of labor hearings due to the closed courts.
The Ministry of Labor conducted inspections to monitor compliance with minimum wage law provisions but often lacked the necessary vehicles or fuel to enable inspectors to enforce the law, especially in the agricultural and informal sectors. The ministry did not employ a sufficient number of labor inspectors to deter violations, and many of them performed reviews on paper or administrative duties rather than clearly defined inspection duties. During the pandemic the ministry closed its offices to the public, and workers were unable to present complaints in person. The ministry established a hotline to receive complaints, but workers stated that often no one answered their calls. The ministry later developed a web portal for complaints, but not all workers had access to internet. The number of inspections conducted decreased during the pandemic.
On July 9, the Ministry of Labor issued a ministerial accord allowing certain businesses to suspend the payment of worker’s midyear bonus due to financial hardship caused by the pandemic. The Constitutional Court invalidated the accord, however, and ordered businesses to make the bonus payments on time and in full, in accordance with the law. On July 8, the ministry reported that it would enforce compliance with payment of the bonus, which must be paid to all workers during the first two weeks of July, and emphasized the benefit must be paid by companies that continued operations during the COVID-19 emergency. Ministry inspectors shifted focus in July from COVID-19 hygiene inspections to the bonus payments but had limited staff to complete the inspections. In addition the ministry noted it had coordinated with two banks and a federation of credit and savings cooperatives so that employers affected by the pandemic would have access to the working capital credit fund and fulfill their labor obligations. The ministry also announced that employers who were not financially able to pay the bonus had to inform ministry officials through an affidavit as established by law.
Labor inspectors reported uncovering numerous instances of overtime abuse, but effective enforcement was undermined due to inadequate fines and labor courts’ reluctance to use compulsory measures, such as increased fines and referrals to the criminal courts, to obtain compliance. During the pandemic these issues worsened as the labor courts closed to the public, performing minimal administrative duties as officials tried to work from home. Other factors contributing to the lack of effective enforcement included labor court inefficiencies, employer refusal to permit labor inspectors to enter facilities or provide access to payroll records and other documentation, and inspectors’ lack of follow-up inspections in the face of such refusals. In one case in June, a business protested the presence of a congressional deputy and a PDH official in an attempted labor inspection. Members of the business community accused the PDH of performing inspections without permission and without the ministry, although ministry presence is not legally required for the PDH to inspect facilities. The business community agreed the PDH has a right to inspect but said the PDH did not always follow official protocols. Due to inefficient and lengthy court proceedings, the resolution of labor court cases was often delayed, in many instances for several years. Employers failing to provide a safe workplace were rarely sanctioned, and a law requiring companies with more than 50 employees to provide onsite medical facilities for their workers was not enforced.
The Solidarity Center explained that almost all organized labor activity ceased during the pandemic as elderly trade union officials were unwilling or unable to venture outside their homes and equally unwilling to cede authority to younger union leaders. Nonetheless, trade union leaders and human rights groups reported employers required workers to work overtime without legally mandated premium pay. Management often manipulated employer-provided transportation to worksites to force employees to work overtime, especially in export processing zones located in isolated areas with limited transportation alternatives. Noncompliance with minimum wage provisions in the agricultural and informal sectors was widespread. Advocacy groups estimated the vast majority of workers in rural areas who engaged in daylong employment did not receive the wages, benefits, or social security allocations required by law. Many employers in the agricultural sector reportedly conditioned payment of the minimum daily wage on excessive production quotas that workers generally were unable to meet. To meet the quota, workers felt compelled to work extra hours, sometimes bringing family members, including children, to help with the work. Because of having to work beyond the maximum allowed hours per day, workers received less than the minimum wage for the day and did not receive the required overtime pay. According to ILO statistics, 74 percent of the workforce worked in the informal sector and outside the basic protections afforded by law.
Local unions highlighted and protested violations by employers who failed to pay employer and employee contributions to the national social security system despite employee contribution deductions from workers’ paychecks. These violations, particularly common in export and agricultural industries, resulted in limiting or denying employees’ access to the public health system and reducing or underpaying workers’ pension benefits during their retirement years.
Many employers of domestic servants routinely paid below minimum wage, failed to register their employees with the Guatemalan Institute of Social Security, and demanded 16-hour days for six or more days a week for live-in staff. Many of these same employees were summarily dismissed at the beginning of the pandemic or advised to stay in the home of their employer without traveling back to their own families or communities for fear of spreading the virus. An undetermined number of dismissed employees returned to their previous employers as conditions stabilized.