ARGENTINA  

REPLY TO THE QUESTIONNAIRE OF THE COMMITTEE OF EXPERTS OF THE FOLLOW-UP MECHANISM FOR THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION  

FIRST ROUND 

I. BRIEF DESCRIPTION OF THE LEGAL-INSTITUTIONAL SYSTEM  

Please briefly describe the legal-institutional system in your country in accordance with its constitutional framework. 

Under its Constitution the Argentine Republic has adopted a republican, representative system of government; the State is organized according to federal system (Article 1 of the Constitution). As a result of the above, there coexist a federal government and 24 districts; the latter consist of 23 provinces together with the Autonomous City of Buenos Aires.   

At the federal government level there is a presidential system with the usual division of powers between the executive branch, a bicameral legislature composed of a chamber of deputies and a senate, and the judiciary.  

The Constitution divides an array of powers between the Federal Government and the Provincial Governments, and leaves in the hands of the latter all the powers not delegated to the Federal Government (Articles 121 and 126 of the Constitution). The Legislature is the authority responsible for enactment of general laws of the nation (Civil, Commercial and Criminal Codes, Labor Statutes, and laws on other areas under federal government jurisdiction), which are applicable throughout the country's territory, while formal or procedural laws, and laws on matters that concern the Provinces come under the jurisdiction of the Provincial Governments.  

The Executive Branch also plays a part in the making and enactment of laws, since the Constitution accords to it the power to veto laws, either partially or in full, with the result that any bills not promulgated are returned to the legislature for reconsideration.  

In the framework of the legislative branch is the Federal External Audit Office, which is responsible for external oversight of the assets and liabilities and the economic, financial and operative aspects of the Civil Service (Article 85 of the Constitution).  The Ombudsman is also under that framework; its mission is the defense and protection of the civil rights enshrined in the Constitution, international treaties and laws against deeds, acts or omissions of the Administration (Article 86 of the Constitution).  

The Executive Branch may issue regulations or executive orders in connection with such matters of administration or of public emergency as it is expressly empowered by the Congress (Article 76 of the Constitution); the Executive may do likewise in situations of need or urgency, in the event that special circumstances make it impossible to follow the normal procedures laid down for the enactment of laws, and provided that such provisions do not concern criminal, taxation or electoral matters, or the party political system (Article 99 (3) of the Constitution). Materially speaking, such decrees are general laws, even if they are regarded as provisions of inferior rank to laws.  

The executive branch is also empowered to issue such regulatory orders as may be necessary for the enforcement of laws without altering their spirit with statutory exceptions (Article 99 (2) of the Constitution). It may also issue autonomous decrees that only apply within the framework of the executive branch and which the President issues as the person politically responsible for the administration of the country (Article 99 (1)).  

As to the place occupied by international treaties in the order of superiority of laws, there is a block of federal laws that outranks the laws of Provincial Governments:

1.   Constitution and international treaties on human rights with constitutional rank (Articles 31 and 75 (22) of the Constitution)

2.   International treaties of inferior rank to the Constitution, including those on regional integration and those deriving therefrom -the Inter-American Convention Against Corruption is situated at this level- (Articles 31 and 75 (22 and 24) of the Constitution).

3.   Acts of Congress (Articles 31 and 75 (22 and 24) of the Constitution)

4.   Executive orders of the executive branch (Article 76 of the Constitution)

5.   Emergency decrees of the executive branch (Article 99 (3) of the Constitution). 

The President of the Nation performs the functions of head of state and head of government, is politically responsible for the political administration of the country, and is the head of the armed forces (Article 99 (1) and (12) of the Constitution). Beneath him there are currently 10 Ministries and the Office of the Head of the Cabinet, whose powers are laid down by Act of Congress.  In the framework of the Civil Service, beneath the structure of the ministries is a large number of administrative organizations that comprise the so-called public sector (Article 8 of Law Nº 24.156) and engage in government management, administrative and oversight affairs.  

As for the judiciary, its mission is to settle disputes that arise in lawsuits and to safeguard the supremacy of the Constitution. There is diffuse control of the constitutionality of laws exercised by all the judges of the nation, including provincial judges. Their decisions on the constitutionality of a norm do not have the effect of abolishing it but merely affect the parties in the dispute.  

Connected to the judiciary are the Judicial Council [Consejo de la Magistratura] and the Judicial Conduct Board [Jurado de Enjuiciamiento de Magistrados de la Nación] (Articles 114 and 115 of the Constitution). The main functions of the Council are selection of lower-court judge candidates, administration of the judiciary, and to apply disciplinary measures and bring charges against judges, the latter before the above-mentioned Judicial Conduct Board, which hears proceedings for the removal of federal lower-court judges.  

There is also a Department of Justice [Ministerio Público] composed of the Attorney General's Office and the Public Defender's Office, the purpose of which is to institute judicial proceedings in defense of lawfulness and of the general interests of society (Article 120 of the Constitution). 

General Comment: To reply to this questionnaire, a number of public agencies with specific jurisdiction over the matters consulted were requested to provide information, which will be analyzed by the Committee of Experts.  

Agencies consulted:  

·     Anti-Corruption Office of the Ministry of Justice, Security and Human Rights

·     Chamber of Deputies

·     Senate

·     Federal External Audit Office [Auditoría General del Nación]

·     Federal Comptroller's Office (jurisdiction of the Executive) [Sindicatura General del Nación]

·     Ministry of the Interior

·     Ministry of Foreign Affairs, International Trade and Worship

·     Attorney General's Office

·     Public Defender's Office

·     Ombudsman

·     Federal Supreme Court of Justice

·     Judicial Council

·     Judicial Conduct Board

·     Bureau of International Affairs and Cooperation of the Ministry of Justice, Security and Human Rights

·     Administrative Development Division, Under-Secretariat for Public Administration, Office of the Head of the Cabinet

·     Judicial Statistics Office 

II. CONTENT OF THE QUESTIONNAIRE 

CHAPTER ONE 

MEASURES AND MECHANISMS REGARDING STANDARDS OF CONDUCT FOR THE CORRECT, HONORABLE, AND PROPER FULFILLMENT OF PUBLIC FUNCTIONS (ARTICLE III, 1 AND 2 OF THE CONVENTION) 

1. General standards of conduct and mechanisms 

a.   Are there standards of conduct in your country for the correct, honorable and adequate fulfillment of public functions? If so, briefly describe them and list and attach a copy of the related provisions and documents. 

Note: The standards of conduct for fulfillment of public functions are governed by different laws. Some are general and apply to all civil servants, whether elected or appointed, while others are special and apply to certain types of agencies.  

Following is a summary of the general provisions:  

The Public Ethics Act (Nº 25.188), the scope of which covers all civil servants, regardless of their level or rank, whether they are hold office in a temporary or permanent capacity as a result of a popular election, direct appointment, or competition, or through any other legal mechanism. Under Article 1, the Act applies to all judges, officials and employees of the State; Article 2 contains nine clauses setting forth duties and standards of ethical conduct.  

Among the foregoing are Art. 2 (a) which makes it a duty to respect the legal order and the democratic system; Art. 2 (e), which creates the obligation to justify one's acts and to be as transparent as possible in the adoption of decisions without restricting information unless a rule or public interest clearly requires otherwise; Art. 2 (h), which, in public contracts, requires respect for the principles of openness, equality, fair competition, and reasonableness; and Art. 2 (i), which makes it an obligation to disqualify oneself in certain circumstances provided in the Code of Civil Procedure regarding the laws on conflicts of interest. 

Decree 41/99, which adopts the Code of Public Ethics, sets out general standards of ethical conduct for civil servants employed in the executive branch. The Decree contains 28 such principles, contained in Articles 8 to 35, on:   

Probity, Prudence, Justice, Temperance, Eligibility, Responsibility, Ability, Training, Lawful Conduct, Evaluation, Truthfulness, Discretion, Transparency, Duty to Present Financial Disclosure Statements, Obedience, Independent Judgment, Equity, Fair Treatment, Proper Performance of Duties, Proper Use of State Assets, Proper Use of Work Hours, Cooperation, Use of Information, Duty to Report Offenses, Dignity and decorum, Honor, Tolerance, Good Sense. 

Act Nº 25.164, which governs policy on Public Employment in the executive branch, lists at Articles 23 and 24 various obligations and prohibitions. 

The foregoing include the duty to cooperate as a witness in preliminary investigations, matters concerning conflicts of interest; as well as the prohibition to represent or defend litigants against the civil service in judicial or extra-judicial matters.  

Finally, the aforementioned laws contain rules on gifts to civil servants.   

In that connection, Article 18 of the Public Ethics Act (Nº 25.188) provides, "Civil servants may not receive presents, gifts, or donations, whether of things, services or assets, in return for performance of their duties or in the course thereof. Should the gifts be given out of courtesy or diplomatic custom, the enforcement authority shall draw up rules on their registration and on the cases and manner in which they should become the property of the State, in order to be allocated for use in the areas of health, welfare, and education, or to be made part of the country's historical and cultural heritage, as appropriate".  

Decree 41/99 (Articles 36 to 38) provides rules on gifts and other benefits that may be interpreted as complementary to Article 18 immediately above, since it contains a series of circumstances that are useful for interpretation of the general principles given in Act Nº 25.188.  

b.   Are there mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents. 

Note: Enforcement of the general standards summarized in point a) above, and of special rules, falls under the jurisdiction of different agencies, depending on their level of constitutional independence. 

The administrative punishments detailed below are applied irrespective of the criminal penalty to which the official in question may be liable in accordance with their conduct, which exceeds the framework of Article III (1) and (2) of the Inter-American Convention Against Corruption inasmuch as they are not preventive measures but have to do with criminal law issues. 

Civil Service 

In the framework of the Civil Service -executive branch- the authority that enforces the standards of conduct contained in the Public Ethics Act (Nº 25.188) and in Decree 41/99 is the Anti-Corruption Office. For the purposes of investigating possible violations of the standards of ethical conduct contained in those laws, the Anti-Corruption Office receives queries from officials and complaints from the public -even anonymous ones- which may be submitted in person, by fax, or by electronic mail.  

The recommendations and instructions of the Anti-Corruption Office are obligatory for any that requests or receives them (Article 5 of Decree 41/99)  

The Anti-Corruption Office has broad investigative powers to request reports from public and private agencies, which are duty-bound to reply to them (Articles 2 and 5 of Decree Nº 102/99).  

The enforcement authority in the event of a violation of the Rules on Public Employment adopted by Act Nº 25.164 is the Public Employment Office, in the framework of the Under-Secretariat for Public Administration of the Office of the Head of the Cabinet.  

Punishments

Officials who fail to comply with the standards of ethical conduct contained in Act Nº 25.188, Decree 41/99, or Act Nº 25.164 -which applies solely to career employees in the executive branch- are punished or removed from office via administrative procedures contained in the rules governing their office (Article 3 of Act Nº 25.188; Article 47 of Decree 41/99; and Article 30 of Act Nº 25.164). In this connection the Rules of Procedure for Administrative Investigation (Decree 467/99 published in the Official Gazette of May 13, 1999) provides special rules for summary proceedings in the event of breach of duty by civil servants. 

Disciplinary measures can take the form of a caution, suspension of up to 30 days per year, dismissal or discharge. The difference between the last two is that a person dismissed may apply for re-eligibility for the civil service after two years, while a person discharged may only do so after four years; the punishment further entails removal from all positions in the civil service held by the discharged person (Articles 27 to 38 of Act Nº 25.164).  

It should be mentioned that under-secretaries, secretaries and ministers, as political officials appointed by the President of the Nation, are not subject to specific disciplinary rules, for which reason they are not liable to summary proceedings under Decree 467/97. Accordingly, such cases are referred to the President, who may order an investigation into the circumstances of the case.  

Judiciary  

The enforcement authority for Act Nº 25.188 in the framework of the Judiciary is the Federal Supreme Court of Justice (Court Decision Nº 1/2000). The punishments for violation of the Codes of Conduct, following a summary administrative proceeding in which the violator has the right of defense, are prevention, caution, fine, suspension of not more than 30 days, dismissal, and discharge (Article 16 of Decree Law 1285/58 on Organization of the Justice System).  

The Judicial Council exercises the respective disciplinary powers in the event of violation of a standard of conduct by a federal lower-court judge (Article 114 of the Constitution). If the offense is very serious the Council may examine the case to determine if it warrants a petition to the Judicial Conduct Board for removal of the judge for misconduct.  

Senate 

Under Articles 36, 38 and 39 of the Act concerning the Statute and Ranking of Congressional Employees (Act 24.600), breach of the obligations set forth therein may entail, even for high-ranking employees, the punishments of caution, suspension, dismissal, and discharge, provided they are ensured the right to defense. 

By DP-773/99 the Senate adopted the "Rules of Procedure for Administrative Investigations", approved by Decree 467/99. Under said procedure, should a deed, act or omission give rise to liability to disciplinary action, whether or not a loss to the treasury occurs, an investigative hearing or summary administrative proceeding, as appropriate, is opened to determine liability and to impose, on the basis thereof, the appropriate penalties. Furthermore, criminal charges shall also be brought in cases where the said rules so provide.

Federal External Audit Office (AGN) 

With respect to the issue of violation of standards of conduct, depending on the seriousness of the offense, the following penalties are imposed after a summary administrative proceeding is held: caution, suspension of up to 30 days, dismissal, or discharge (Articles 22 et seq. of the Employees Statute of the Federal External Audit Office).  

Department of Justice: Attorney General's Office 

The Technical and Disciplinary Control Department intervenes in summary proceedings arising from violations of the standards of conduct (Attorney General's Office, Resolutions Nº 88/99 and 89/99)   

Under Article 80 of the Basic Norms of the Attorney General’s Office, the punishments that may be imposed, irrespective of any civil or criminal liability that might arise, are reprimand, caution, suspension of up to 30 days, dismissal, or discharge. 

Department of Justice: Public Defender's Office 

The Public Defender's Office has disciplinary regulations for judges, officials and employees, which are attached hereto in electronic format (Public Defender's Office, Resolution Nº 1252/98).  

Ombudsman 

The punishments imposed for violation of the standards of conduct are caution, suspension of up to 10 days, dismissal or discharge (Article 28 of the Employees Statute). Imposition of a caution or of a suspension of up to 10 days does not require a prior summary administrative proceeding.  

Judicial Conduct Board  

Governed by the rules of the Federal Supreme Court of Justice. 

c.   Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available. 

As regards results, the Anti-Corruption Office has issued five recommendations on gifts. (In the cases of "Aerolíneas Argentinas airplane tickets"; Query from the "Minister of the Economy"; "De la Rúa"; "National Transport Regulation Commission", Query from the Manager of "Intercargo").   

Those recommendations stated that officials are prohibited to accept gifts from any persons, whether individuals or corporations, that are forbidden sources. It is up to the official who is the intended recipient of the gift to determine if the person who bestows it is a forbidden source. 

In order to assist that evaluation, the following guidelines should be observed in the determination of forbidden-source status:  

1)   Persons or institutions whose activities are regulated by or under the supervision of the agency where the official is employed;

2)   Contractors of the agency or department to which the official belongs; 

Should a forbidden source offer a gift the official should either reject it or, as appropriate, return it.  

Gifts given out of observance of protocol, courtesy, or diplomatic custom mentioned in Act N° 25.188 should be considered differently. 

These gifts become the property of the State upon their receipt by the Minister, who, under the law is required to allocate them "for use in the areas of health, welfare, and education, or to be made part of the country's historical and cultural heritage, as appropriate." 

Two cases concerning use of confidential information (Cases of "Embón" and "Terranova-Ducrós"): in these cases Article 30 of the Code of Public Ethics (Decree Nº 41/99) was applied to officials who had left office.    

One case of nepotism and eligibility of officials ("Piaggi" case): This case led to examination of the scope of Article 43 of Decree Nº 41/99, which provides, "Civil servants may not select relatives or friends to render services in the department of which they are in charge, in disregard of the requirement of duly accredited eligibility."  

As to cases of independent judgment or to the obligation to disqualify oneself, they relate to do instances of conflicts of interest which are analyzed herein below.  

Senate 

The Subdivision for Summary Proceedings [Subdirección Sumarios] of the Bureau of Legal Affairs [Dirección General de Asuntos Jurídicos], provide the following statistics on enforcement of the above rules and mechanisms over the past two years: A total of 83 cases; 56 summary proceedings; 26 investigative hearings; 47 cases concluded.  

With respect to criminal complaints, 20 cases have been brought and 14 are currently proceeding; four were closed or dismissed; and a final decision has been rendered in two.

Furthermore some six employees were either discharged or dismissed. 

Federal External Audit Office (AGN) 

There is no record of violations of the standards of conduct among its officials.  

Department of Justice: Attorney General's Office  

Following the entry into force of the disciplinary rules for prosecutors of the Attorney General's Office, adopted by Attorney General's Office resolution P.G.N. 57/99, several internal proceedings were opened, mainly originated on the basis of reports received under Title II, Article 16 of the rules, or because the Attorney General, as a result of reports filed by private individuals, and in compliance with Article 17 (first part), requested the prosecutor named to furnish such explanations as he or she deemed necessary regarding the matter brought to the attention of the Attorney General's Office. 

Department of Justice: Public Defender's Office 

There is no record of violations of the standards of conduct.  

Ombudsman 

There is no record of violations of the standards of conduct among its officials.

Judicial Conduct Board  

There is no record of violations of the standards of conduct among its officials.  

The following agencies have not provided the requested information to the Anti-Corruption Office of the Ministry of Justice, Security and Human Rights as the contact point for the reply to the present questionnaire:

Chamber of Deputies; Federal Supreme Court of Justice; Judicial Council.  

2. Conflicts of interest 

a.   Are there standards of conduct in your country regarding the prevention of conflicts of interest in the performance of public functions? If yes, briefly describe them, indicating aspects such as to whom they apply and the concept on which they are based, and list and attach a copy of the related provisions and documents. 

The Public Ethics Act (Nº 25.188) (BO 1-11-1999) at Chapter V sets out incompatibilities and conflicts of interest for civil servants (Articles 13 to 17). The executive has issued regulations (Decree 164/99 of December 28, 1999) for this Act only in the framework of the central and decentralized civil service.  

Articles 14 and 15 of Act Nº 25.188 have been amended by Decree Nº 862/2001 (Official Gazette of July 2, 2001), in accordance with the powers delegated to the executive branch. 

Articles 13 to 17 of Act Nº 25.188 provide the following:  

ARTICLE 13. — It is incompatible with the duties of the civil servant to:

a) Direct, administer, represent, sponsor, advise, or otherwise provide services to anyone who manages or holds a concession, is a purveyor to the State, or engages in activities regulated thereby, while the position held has direct functional jurisdiction over contracting, procurement, management or oversight of such concessions, benefits or activities;

b) Be a purveyor in their own right, or for third parties, to any agency of the State where they perform their duties. 

ARTICLE 14. — Civil servants who have been involved in a decision-making capacity in planning, implementation and finalization of privatizations or concessions of state-owned companies and utilities, are barred from participation in the regulating bodies or committees of said companies or utilities for three years after the last award in which they took part." 

ARTICLE 15. — Should any of the incompatibilities provided in Article 13 be met at the time of their appointment, the civil servant shall:

a) Desist from such activities as a precondition to taking up their duties; and

b) Refrain, during their tenure, from involvement in any matter specifically connected with persons or affairs with which they were involved during the previous three years, or in which they might have a corporate participation." 

ARTICLE 16. — These incompatibilities shall apply without prejudice to those contained in the special standards for each office. 

ARTICLE 17. — When any of the assumptions contained in Articles 13, 14 and 15 are met in connection with decisions issued by the persons contained in Article 1, those decisions shall be absolutely null and void, without prejudice to the rights of third parties who acted in good faith. Should the matter concern an administrative act, that act shall become absolutely null and void under the terms of Article 14 of Act 19.549.

The contracting firms and concessionaires bear joint and several responsibility for reparation of any damages caused to the State. 

Ministries Act: Furthermore, Articles 24 and 25 of the Ministries Act (Ordered Text Decree 438/92) sets out for officials directly appointed by the President (Head of the Cabinet, Ministers, Secretaries, and Under-Secretaries) special standards on conflicts of interest. Said standards are supplementary to the general standards contained in Act Nº 25.188. The above Articles provide as follows:  

Art. 24 – With the sole exception of teaching, during their tenure ministers, secretaries and under-secretaries shall refrain from any commercial activity, business, enterprise, or profession that is directly or indirectly connected with national, provincial or municipal powers, agencies or companies. 

Art. 25 – Moreover, they may not intervene in lawsuits, disputes, or proceedings in which the federal state, provinces, or municipalities are a party, nor engage in freelance professional activities or activities in which, though the State has no interest therein, their position as an official might sway the decision of the competent authority or disrupt the principle of equality before the law enshrined in Article 16 of the Constitution. 

Judiciary and Department of Justice (Attorney General's Office and Public Defender's Office) 

In the framework of the Judiciary and the Department of Justice, in addition to the Public Ethics Act (Nº 25.188), the judicial procedural codes contain special rules on self-disqualification (Articles 14 to 32 of the Code of Civil and Commercial Procedure, and Articles 55 to 64 of the Code of Criminal Procedure). 

b.   Are there mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents. 

With regard to mechanisms to enforce the acts and decrees mentioned above, Decree 164/99, which contains the rules for application of Act 25.188, provides at Article 22 that officials shall present a statement of compliance with the standards on conflicts of interest set down in the Public Ethics Act.  

The Anti-Corruption Office processes cases that arise from three separate sources:

a) Integrated Financial Disclosures Unit;

b) Complaints filed by private individuals or civil servants both anonymously and overtly;

c) Queries made by implicated persons with respect to a given situation of conflict of interest. 

The punishment specifically provided for decisions issued in situations of conflict of interests is absolute nullity (Act 25.188, Article 17). The chapter on conflicts of interest in Act 25.188 does not contain any punishment for officials responsible.  

Nevertheless, Article 15 of that Act, amended by Decree 862/01, provides the obligation of self-disqualification from involvement in matters that entail a conflict of interests. That obligation applies to all civil servants or person hired to perform public duties. Under Article 3 of Act 25.188, breach of the above obligation gives rise to liability to the punishments provided in the Public Employment Act (Nº 25.164), namely caution, suspension, dismissal or discharge. 

In the case of political officials (under-secretaries, secretaries y ministers), while the decisions they issue are declared null and void, there are no punishments for them provided in Act 25.188, nor does Act 25.164 apply to them. Accordingly, it is necessary to advise the executive branch should such a situation arise.   

Furthermore, such conduct may constitute the crime of incompatible transactions (Article 265 of the Criminal Code). 

Judiciary 

In the Judiciary the procedure for self-disqualification is as follows: either any party may request the recusation of the judge; or the latter is required to recuse himself or herself ex officio. The judge presents his or her arguments and the matter is referred to the superior court for a decision. Until a decision is reached on the recusation, the judicial proceeding is assigned to another court. Judges who fail to recuse themselves are liable to disciplinary sanctions imposed by the Judicial Council, or, if the offense is considered sufficiently serious to warrant removal for misconduct, to a removal hearing before the Judicial Conduct Board or the Senate, according to whether they are a lower court judge or a supreme court justice.  

Federal External Audit Office (AGN) 

At the Federal External Audit Office, Chapter II, Article 3 of Employees Statute sets forth the situations in which employment at the agency is prohibited. The provision mentions anyone who engages in another occupation in the public or private sector that is manifestly ethically incompatible with the functions of the Federal External Audit Office (clause j).  

Statements of incompatibility and conflict of interest are processed at the Federal External Audit Office by the Division of Human Resources Development and Allocation [Departamento de Desarrollo y Asignación de Recursos Humanos], under the Department of Administration and Finance [Gerencia de Administración y Finanzas], which may institute a summary administrative proceeding in order to punish an agent involved in a situation of conflict of interests.  

All agents (on both the permanent and the temporary staff) are required to submit statements of incompatibility as a precondition to their entry (Article 5 of the Employees Statute). These statements must be renewed annually. 

Ombudsman  

The punishments for violation of the rules on conflicts of interest are caution, suspension of up to 10 days, dismissal or discharge (Article 28 of the Employees Statute). Imposition of a caution or a suspension of up to 10 days does not require a prior summary administrative proceeding. 

Department of Justice: Attorney General's Office and Public Defender's Office  

Article 71 of the Code of Criminal Procedure provides that officials of the Department of Justice shall disqualify themselves on the same grounds as those provided for judges, with the exception of the provisions contained in the first part of Article 55 (8) and 55 (10).  

c.   Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available. 

As of June 30, 2002, the Anti-Corruption Office has reviewed 491 Financial Disclosure Statements submitted by civil servants, in order to identify possible cases of conflict of interests and violation of the prohibition against holding more than one salaried position in the public sector (incompatibilities).  

In the area of conflict of interests, 78 cases have been resolved and made public on the web site (www.anticorrupcion.jus.gov.ar).  

The Anti-Corruption Office has also answered an unspecified number of queries from officials regarding their particular positions with respect to the laws on public ethics.    

Broadly speaking, most cases in connection with Article 13 (a) and 15 of Act 25.188 -before the amendment of the latter article by Decree 862/01- led to preventive recommendations of self-disqualification so that the official in question might avoid a conflict of interests over private activities prior to taking office, or in cases where it was found that the civil servant continued to engage in private activities under the direct functional jurisdiction of the office they held. In the latter cases either the official was requested to disassociate themselves from such private activities or recommended to disqualify themselves (examples of cases of both types: Gallo, Gadano, Montamat; Giorgi; Lombardi; Saliva; Embón; Terranova-Ducros).  

There have been cases under Article 13 (b) of Act 25.188 in which officials have been prohibited from being purveyors to the agency they serve (case of Iaies, Porcel, Aldini, Farías Bouvier; Novak).  

In two cases, the civil servants in question were recommended to implement transparency mechanisms to ensure the participation of sectors affected by certain standards or a particular decision to be adopted. In that way the official avoids having their impartiality questioned, and greater legitimacy is assured for the decision ultimately adopted (Case of "Aguiar" and "Chevallier Boutell").  

Also examined were cases in connection with the rules on conflict of interests contained in the Ministries Act (Cases of Mariscotti, Tizado and Kohan). In those cases, since the Anti-Corruption Office is not the enforcement authority, the records were referred to the executive branch together with suggested preventive recommendations (in the Tizado case), or so that the measures deemed appropriate be adopted since it had been determined that there had been a breach of the rules (Cases of Mariscotti and Kohan).  

Judiciary:  

There are countless cases of recusation in the thousands of lawsuits that are ongoing or have been closed.  

Federal External Audit Office:  

There is no record of violations of the rules on conflict of interests.

Ombudsman: 

There is no record of cases involving conflict of interests among its officials.  

Department of Justice: Attorney General's Office and Public Defender's Office  

There are countless cases of recusation in the thousands of lawsuits that are ongoing or have been closed 

Senate:  

We have no information that there is any record of cases of conflict of interests.  

The following agencies have not provided the requested information to the Anti-Corruption Office of the Ministry of Justice, Security and Human Rights as the contact point for the reply to the present questionnaire:  

Chamber of Deputies; Judicial Council.  

3.   Conservation and proper use of resources entrusted to public officials in the performance of their functions 

a.   Are there standards of conduct in your country that govern the conservation and proper use of resources entrusted to public officials in the performance of their functions? If yes, briefly describe them, indicating aspects such as to whom they apply and whether there are exceptions, and list and attach a copy of the related provisions and documents. 

As regards conservation and proper use of funds -as distinct from provisions of criminal law on embezzlement of public funds, which are addressed by Article XI of the Inter-American Convention Against Corruption and are unrelated to this questionnaire-, the general laws applicable to all civil servants in every branch of government contain the following standards of conduct:  

Article 27 of the Code of Public Ethics (Decree Nº 41/99): -PROPER USE OF STATE ASSETS. Public officials shall protect and conserve the assets of the State. They shall use the assets they have been allocated in a rational manner, avoiding misuse, waste or squandering.

Moreover, they may not use them or allow others to use them for personal ends or for purposes other than those for which they have been specifically intended. The activities officials must perform outside of office hours or premises for purposes of government business shall not be considered personal ends. 

Article 2 (f) of the Public Ethics Act (Nº 25.188) makes it a duty and standards of ethical conduct for public officials to: Protect and conserve State property and only to use its assets for approved purposes; refrain from using information acquired in the performance of their functions to engage in activities not related to their official duties or to permit its use for the benefit of private interests.  

In addition, with respect to civil service employees in the executive branch, under Article 23 (l) of the Public Employment Act (Nº 25.164), it is the duty of civil servants "to ensure the care and conservation of assets that are the property of the State and of those of third parties specifically placed in their safekeeping."  

Furthermore, Act 24.156 includes a government accounting system that is attached in electronic format. 

See also in electronic format detailed information provided by the Senate, Ombudsman and Attorney General's Office.  

We have not received replies in this regard from the Chamber of Deputies, the Federal Supreme Court of Justice, the Judicial Council and the Public Defender's Office. 

b.   Are there mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents. 

The specific mechanisms to enforce compliance with the above-transcribed standards are given in the replies to Chapter One, 1. General standards of conduct and mechanisms, point b).  

Civil Service – Executive Branch

Federal Comptroller's Office (SIGEN)  

The Public Sector Financial Administration and Oversight Systems Act (24.156) provided the creation of the FEDERAL COMPTROLLER'S OFFICE (SIGEN, by its initials in Spanish) and gives it powers with respect to internal oversight of budgetary, economic, financial, asset-related, regulatory, and administrative matters of the jurisdictions that comprise the national executive branch, as well as of decentralized agencies, and state-owned enterprises and companies.  

As the internal oversight organ of the executive branch and governing body of the internal oversight system, the SIGEN, in exercise of its legally conferred powers, issues, enforces and supervises compliance with the Civil Service internal oversight standards contained in the framework of a comprehensive and integrated supervision model and grounded in principles of economy, efficiency and effectiveness. 

This oversight system also comprises internal audit units set up within each jurisdiction and in all entities under the supervision of the executive branch. Hierarchically these units are under the supervision of the supreme authority of each agency and act in coordination with the SIGEN.  

Under Article 101 of Act 24.156, the oversight body of each jurisdiction or entity of the executive is responsible for the maintenance and proper functioning of an internal oversight system therein. The internal audit units shall faithfully and immediately report to the SIGEN the breach of any of the standards that govern the internal oversight systems and financial administration of their respective jurisdiction or entity. 

The role of Federal Comptroller's Office is basically to supervise, direct, and coordinate the internal oversight and internal audit systems that are set up in all units of the federal public sector. 

Federal External Audit Office: 

Act 24.156 governs the application of Article 85 of the Constitution (following the 1994 constitutional reform), which created in the framework of the legislature the Federal External Audit Office as the external oversight body of the administration, with functional and financial independence.  

This agency exercises the powers accorded by Article 118 of Law 24.156, and its tasks include to supervise compliance with legal and statutory provisions regarding the use of state resources, and to conduct financial, legal compliance and administrative audits. The Federal External Audit Office, created in the framework of the National Congress, is, in turn, under the oversight of the Joint Parliamentary Committee for Accounts Inspection composed of six legislators from both Chamber of the Congress. 

Article 117 grants powers to conduct subsequent external oversight of budgetary, economic, financial, asset, legal and management administration matters, and to issue opinions on the accounting and financial statements of the central administration, decentralized agencies, state-owned enterprises and companies, public utility regulators, and private entities that have purchased companies in privatization processes as regards performance of their obligations under the respective agreements.  

The foregoing provision also extends to this office powers to conduct subsequent external oversight of the Congress and, subject to agreement, the federal judiciary. 

Under the system provided in Act 24.156, the Federal External Audit Office carries out its functions in accordance with an annual program of action on external oversight which it submits for approval to the Joint Parliamentary Committee for Accounts Inspection and Joint Committee of Budget and Finance (pursuant to Articles 125 (a) and 129 (a). 

With respect to the scope of an audit, it must be consistent with oversight and auditing criteria, and with standards that conform to an integrated external oversight and audit model that encompasses financial, legal and economic aspects, as well as efficiency and effectiveness (in accordance with Article 119 (d) of Act 24.156). 

The system contained in Act 24.156 is applied after the fact; that is, the audit is conducted on compliance with legal and statutory provisions on the use of state resources after the respective documents have been released. 

c.   Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available. 

The SIGEN web site contains many reports wherein it is possible to appreciate the working methodology (http://www.sigen.gov.ar/main.html).  

By way of an example, we forward to the Committee of Experts a report in connection with the Federal Social Security Institute for Retirees and Pensioners [Instituto Nacional de Servicios Sociales para Jubilados y Pensionados], specifically in connection with existing internal controls on goods and services procurement operations of the Unidad Policlínicos PAMI-Rosario Integradas (UPPRI). 

With respect to results obtained by the Federal External Audit Office, as with the SIGEN, there is a large number of reports published on its web site (http://www.agn.gov.ar/). 

Also by way of an example we forward to the Committee of Experts a report on an audit on the financial statements of the "Third Social Protection Project" (World Bank Loan Agreement N° 4366-ar BIRF). 

4. Measures and systems requiring public officials to report to appropriate authorities acts of corruption in the performance of public functions of which they are aware 

a.   Are there standards of conduct in your country that establish measures and systems governing the requirement that public officials report to appropriate authorities acts of corruption in public office of which they are aware? If yes, briefly describe them, indicating aspects such as to whom they apply and if there are any exceptions, and list and attach a copy of the related provisions and documents. 

The requirement that public officials report to the authorities acts of corruption is contained in the Federal Code of Criminal Procedure, which obligates civil servants to report offenses that are prosecutable ex officio,