INTERINSTITUTIONAL TECHNICAL COMMITTEE IN SUPPORT OF THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION- CITAIC
REPORT OF THE REPUBLIC OF PARAGUAY ON THE PROVISIONS SELECTED FOR THE FIRST ROUND
INSTITUTION (alphabetical order)
Council of the National System for Probity
Mario A. Estigarribia M.
Office of the Comptroller General of the Republic - CGR
Advisor to Assistant Comptroller General of the Republic
Ministry of Justice and Labor - MJT
Member at large
Ministry of Finance – MH
Public Ministry – MP
Aurelio Zárate Arce
Public Service Secretariat
Asunción, Paraguay, 30 August 2002
§ The Republic of Paraguay adopts as its system of government a representative, participatory, and pluralistic democracy. It is a “social State of law which is unitary, indivisible and decentralized”, which acknowledges the fundamental importance of human dignity and social and political pluralism, as outlined in Articles 1, 2 and 3 of its Constitution.
Article 1 – About the Type of State and Government. The Republic of Paraguay is and always will be independent. It is constituted as a social State of law, which is unitary, indivisible, and decentralized as described by this Constitution and the laws. The Republic of Paraguay adopts as its system of government a representative, participatory, and pluralistic democracy, which is founded on the recognition of human dignity.
Article 2 – About Sovereignty. In the Republic of Paraguay, sovereignty rests with the people, who exercise it in accordance with the provisions of the Constitution.
Article 3 – About Public Powers. The people exercise public powers through their right to vote. The government is exercised by the legislative, executive, and judicial branches, which are kept independent, balanced and coordinated through a system of mutual checks and balances. None of these branches may claim for itself nor may grant to another branch, any individual, or group, either special powers or all of the public powers.
Dictatorship is against the law.
§ The Republic of Paraguay subscribed the Convention in 1996, ratified it through Law 977/1996 and joined the Follow-up Mechanism for its implementation in January 2002.
I. SUMMARY OF INFORMATION RECEIVED
This document was drawn up by the Interinstitutional Technical Committee in Support of the Implementation of the Convention (CITAIC). The representative of each institution making up the committee prepared a preliminary version of the document in which each of the questions was answered. At subsequent joint working meetings, the information was compiled, revised, enhanced and consolidated in the form of a report.
The reports contains the answers to the issues raised in the questionnaire on the first round of work on the Convention, as follows:
· Standards of conduct for the correct, honourable, and proper fulfillment of public functions, including mechanisms to enforce them (conflicts of interest and proper conservation and use of resources entrusted to government officials and systems requiring government officials to report to appropriate authorities acts of corruption in the performance of public functions). Article III, paragraphs 1 and 2.
· Systems for disclosing income, assets and liabilities. Article III, paragraph 4.
· Oversight bodies. Article III, paragraph 9.
· Mechanisms to encourage participation by civil society in efforts to prevent corruption. Article III, paragraph 11.
· Assistance and cooperation by States Parties in the investigation or prosecution of acts of corruption, as well as mutual technical cooperation. Article XIV.
· Central Authorities. Article XVIII.
For each of the issues listed above, the report provides a brief summary of the constitutional provisions and the compendium of laws related to these provisions. Then, in each section, each article is summarized relative to the standard being analyzed. Based on this summary review, the report sets out the existence of the legal framework and, consequently, of the degree of compliance of the country with respect to the standards outlined in the Convention.
As for the outcomes of the legal framework and/or other measures and their effectiveness, it should be pointed out that the data obtained are those included in the report, and that a great deal of data is still in the process of being compiled. The majority of the data required has not been systematized, and is not available in electronic form, which would have facilitated the work.
Nevertheless, a sub-questionnaire was sent to several of the institutions most directly linked to each of the questions being analyzed. To date, replies are continuing to arrive at the CITAIC office. These replies will be turned over as soon as they have been processed; a priori, however, they do not provide the possibility of compiling statistics that demonstrate the effectiveness of the standards being reviewed.
II. REVIEW OF THE IMPLEMENTATION OF THE PROVISIONS SELECTED BY THE STATE PARTY
This section of the report reviews, in accordance with the methodology adopted by the Committee, the implementation by the Republic of Paraguay of the provisions selected within the framework of the first round, based on a detailed list of the country’s domestic legal mechanisms.
The description of these legal mechanisms is divided into chapters based on the respective themes, as follows:
§ Chapter 1. Standards of conduct and mechanisms to enforce them (Article III, paragraphs 1 and 2);
§ Chapter 2. Systems for disclosing income, assets and liabilities (Article III, paragraph 4);
§ Chapter 3. Oversight bodies (related to selected provisions).
§ Chapter 4. Mechanisms to encourage participation by civil society and non-governmental organizations (Article III, paragraph 11).
§ Chapter 5. Assistance and Cooperation (Article XIV).
§ Chapter 6. Central Authorities (Article XVIII).
§ The final section of the report contains conclusions and recommendations related to the legal framework under review.
TABLE OF CONTENTS
1. Standards of conduct for the correct, honourable, and proper fulfillment of public functions (Article III, paragraphs 1 and 2).
1.1. Conflicts of interest.
1.2. Proper conservation and use of resources entrusted to government officials in the performance of their functions.
1.3. Measures and systems requiring government officials to report to appropriate authorities acts of corruption in the performance of public functions.
2. Systems for disclosing income, assets and liabilities (Article III, paragraph 4).
3. Oversight bodies.
4. Participation by civil society (Article III, paragraph 11)
5. Assistance and Cooperation (Article XIV)
6. Central Authorities (Article XVIII)
Conclusions and Recommendations
CHAPTER 1 – STANDARDS OF CONDUCT FOR THE CORRECT, HONOURABLE, AND PROPER FULFILLMENT OF PUBLIC FUNCTIONS.
The standards of conduct for the correct, honourable, and proper fulfillment of public functions include legislation that is found both in the National Constitution promulgated in 1992, as well as in other specific laws. Given the regulatory framework’s general nature, diversity, scope and, in many cases, similarity when it comes to the three sub-themes, it will be quoted and synthesized under each of the following headings: (1) conflicts of interest (before, during and following fulfillment of public functions); (2) conservation and use of resources and (3) systems requiring government officials to report acts of corruption and protection for those reporting. These three points make up the legal framework, both for preventive measures and enforcement mechanisms. As well, applicable sanctions in the case of non-compliance are described.
It should be pointed out that the Republic of Paraguay does not have a Code of Ethics.
1.1. CONFICTS OF INTEREST.
For the purposes of this report, conflicts of interest shall be defined as those specific interests that may be contrary to (or that may be perceived as being contrary to) the interests that public servants are officially in charge of protecting, such that confidence in the integrity of the public service and of government processes could be undermined.
The report attempts to answer questions related to (a) the existence of standards; (b) whether the standards are applicable to: anyone fulfilling public functions; only a specific category of government officials such as parliamentarians, judges and ministers; those fulfilling functions in specific entities such as control agencies, customs or tax collection offices. Similarly, the report will examine situations that may presuppose that conflicts of interest exist prior to, during or following the fulfillment of public functions.
§ The national legislation compiled in this document includes standards on incompatibilities and ineligibilities, which can be understood as representing a preventive framework designed to avoid conflicts of interest, both in the National Constitution and other specific laws. None of the standards reviewed include the phrase “conflicts of interest”.
§ The National Constitution provides for regulations related to incompatibilities and/or ineligibilities when it comes to applying for a government position or fulfilling public functions. This is compatible with teaching and is expressly covered in Article 105 in a generic fashion, for all government officials and in the majority of the cases listed below. The provisions apply both prior to as well during the fulfillment of public functions, with particular emphasis on the latter. They are applicable to legislative functions – Senator and Deputy (Articles 196, 197, 198 and 199), and to executive functions – President and Vice-President (Articles 235 and 237), Cabinet Ministers (Article 241), Government Attorney for Patrimonial Affairs (Article 245), Judicial Branch - Magistrates (Article 254), Members of the Supreme Court of Justice (Article 258), Members of the Council of Magistrates (Article 263), Attorney General’s Office (Article 267), State Attorneys (Article 270), Public Defender (Article 278), Comptroller and Assistant Comptroller General of the Republic (Article 284), Armed Forces (Article 173). The Constitution also prohibits earning two wages, with the exception of teaching (Article195).
The incompatibilities and ineligibilities listed above refer to executive positions, except for those covered in Articles 105 and 195. They do not refer to an activity that occurs following fulfillment of a public function, once a mandate has been completed or a function has ended, except for provisions of Law Nº 834/1996 Electoral Code.
§ The specific laws that contain regulations related to the framework of preventive measures mentioned above are Nos1066/1965. Law creating the National Administration for Shipping and Ports; 879/1981 Code of Judicial Organization; 1034/1983 About Merchants; 1182/1985. Law creating Petróleos Paraguayos PETROPAR and its Basic Charter; 1294/1987. Municipal Charter; 276/1993 Basic and Operational Charter of the Office of the Comptroller General of the Republic; 1426/1994. Departmental Charter; 296/1994. Law governing the operations of the Council of Magistrates and amendments Nos. 439/94, 763/95 and, 1662/2000 Council of Magistrates; 426/1994. Law establishing the Basic Charter of Departmental Government; 635/1995. Law regulating Electoral Justice; 834/1996. Electoral Code; 1084/1997. Law regulating the procedure for prosecution and removal of magistrates; 1626/2002. Law on the Public Service.
The relevant articles of each law listed above are summarized in the following pages.
§ Law 1066/1965. Creating the National Administration for Shipping and Ports - ANNP.
Article 17 Members of the board may not participate in discussions or agreements on matters of personal interest to them or their partners, their spouses or their relatives within the fourth degree of blood relationship or the second degree of kinship by marriage.
Article 19 Prohibitions for members of the board. a) Directly or indirectly commit the interests of the Administration in commercial, industrial or financial operations outside its mandate; b) Provide information whose disclosure would run counter to the interests of the Administration; c) Directly or indirectly negotiate or contract with the Administration, except as normal users of the service.
Article 23 The President shall dedicate his or her activities to the exclusive service of the ANNP. The duties of the President are incompatible with the exercise of any profession, business or industry whatsoever, or with any other position except that of teaching.
§ Law 879/1981. Code of Judicial Organization
Article 97 Exercising the profession of lawyer is incompatible with holding the position of a government official in the Executive or Judicial branch, or being a member of the armed forces or police forces in active service.
This prohibition does not apply:
a. in the case of one’s personal business or that of one’s parents, spouse, children who are minors, or persons under one’s guardianship; b. in the case of teachers; c. in the case of legal advisors to the Executive Branch and to autonomous or self-governing entities, and for lawyers employed by the Military Justice Department.
Article115 Acting as a Commissioner of Deeds is incompatible with the exercise of a function or job of public or private nature.
Article116 Exceptions to the provisions of Article 115 include positions or jobs of a selective or teaching nature, as long as their exercise does not hamper normal attention to the registry; those of a cultural or scientific nature, and the act of holding shares in business corporations.
§ Law 1034/1983. About Merchants
Article 9 Prohibits ecclesiastical corporations, judges and representatives of the Attorney General and the Office of the Public Defender, as well as civil servants in general, from engaging in business activities due to incompatibility of status.
§ Law No. 1182/1985. Creating Petróleos Paraguayos - PETROPAR and its Basic Charter.
Article 9 Prohibits members of the Board from holding senior management or executive positions within private or mixed corporations linked to the marketing of petroleum products or the oil industry in general.
Article 14 No more than two persons related within the fourth degree of blood relationship or the second degree of kinship by marriage may be appointed as members of the Board. Similarly, no more than two persons who are directors, agents or employees of the same civil or commercial corporation may sit on the Board.
§ Law 1294/1987. Municipal Charter.
Articles 27 and 59 Refer to the ineligibility of councillors and superintendents.
Article 249 Prohibits members of the Municipal Council and Superintendents from concluding contracts with each other.
§ Law No 276/1993. Basic and Operational Charter of the Office of the Comptroller General of the Republic
Article 5 The following individuals may not act as Comptroller General or Assistant Comptroller General; a) those who have been the subject of administrative sanctions; b) those who have been convicted of crimes and sentenced to prison, with the exception of crimes related to traffic accidents; and c) those who are related within the fourth degree of blood relationship or the second degree of kinship by marriage to the President or Vice-President of the Republic.
Article 6 The Comptroller General and the Assistant Comptroller General have the same immunities and incompatibilities as those prescribed for magistrates.... may be removed using the procedure established for political prosecutions.
§ Law N° 296/1994 Governing the operations of the Council of Magistrates and amendments Nos. 439/94, 763/95 and Law 1662/2000. Council of Magistrates.
Article 3 Acting as a titular member of the Council is incompatible with the exercise of: 1) the profession of lawyer; 2) any other public position, except for part-time teaching and scientific research ....; 3) partisan political positions.
Article 4 The Minister of the Supreme Court of Justice and members of the Legislative Branch who sit on the Council may not at the same time be members of the Jury for Prosecution of Magistrates; nor may they act as representatives to the Jury.
Article 5 Persons covered by the provisions of Article 197 of the Constitution (individuals such as Senators and Deputies, those convicted of a crime, ministers, owners of mass media, among others) may not present their candidacy as titular or acting members of the Council.
Article 6 About immunities. Members of the Council have the same immunities as Ministers of the Supreme Court of Justice and may only be removed under the procedure established in Article 225 of the Constitution.
Article 35 About regulations. When fulfilling their functions, members of the Council must act with absolute independence from the State, political movements and parties, social sectors and any individual or group. ...
§ 426/1994. Law establishing the Basic Charter of Departmental Government Article 6 Prohibits partisan political campaigning in administration headquarters and using one’s authority or position for purposes unrelated to one’s functions.
§ 635/1995. Law regulating Electoral Justice
Article 7 About the immunities and separation of members of the Superior Court of Electoral Justice, which are the same as those established for magistrates.....
Article 11 About the immunities and incompatibilities of members of the Electoral Courts, which are the same as those for magistrates.
Article 19 Immunities and incompatibilities for electoral judges, which are the same as those for judicial magistrates.
§ Law No 834/1996. Electoral Code
Article 257 Superintendents or governors may not be re-elected.
§ 1084/1997. Law regulating the procedure for prosecution and removal of magistrates
Article 6 Members of the Jury, without prejudice to the incompatibilities related to their position within the entity that designated them, shall have the same incompatibilities as those provided for Judicial Magistrates. a) fail to observe the incompatibilities provided for in Article 254 (incompatibilities of judges) of the National Constitution, or fail to comply with the provisions of Articles 104 (mandatory declaration of assets and income) and 136 (competence of judges) of the Constitution; b) fail repeatedly and seriously to uphold the obligations provided for in the National Constitution, codes of procedure and other laws related to the exercise of their functions; c) fail to maintain personal independence in fulfilling their functions and submit (without being obliged by law) to orders and directives of magistrates of greater hierarchy or civil servants from other state branches or institutions; g) repeatedly show manifest partiality or ignorance of the law in judicial proceedings; l) carry out business, industrial or any other professional activities, or hold official or private positions, or engage in political activities in political movements or parties; m) participate in public demonstrations when such acts could seriously compromise their independence or impartiality, as well as make use of partisan political logos and insignias; p) accept gifts or promises or other benefits, either directly or indirectly, from persons who may in any way take or possibly take a position or hold an interest in lawsuits entrusted to them; r) refrain from removing themselves from a dispute in the knowledge that there were grounds for doing so under the provisions of the law, if this results in serious prejudice or if this attitude ostensibly discredits the investiture of the magistrate; s) contract pecuniary obligations with subordinates or litigants or lawyers who have pending lawsuits in which they will intervene; and, t) be bankrupt, have declared bankruptcy or as a consequence of a definitive sentence, be the subject of a general prohibition against selling or placing a lien on property.
§ 1626/2000. Law on the Public Service
Article 57 Refers to the obligations of public officials, without prejudice to those established in the internal regulations of the respective State entities or agencies, including the obligation to:
f. Maintain professional secrecy...;
g. Observe strictly the principle of administrative probity...;
m. Comply with legal.... provisions concerning incompatibility and accumulation of public positions;
Article 60, in reference to prohibitions for public officials, establishes that, without prejudice to the provisions of respective regulations, it is prohibited to:
a. Use authority or influence to place pressure on the behaviour of subordinates;
b. Work on the organization or administration of political activities in State agencies;
c. Use the authority of one’s position to influence or effect the result of an election ;
d. Carry out activities during the workday or make use of confidential or reserved personnel, information or material of the agency for purposes other than those established by the agency or entity for whom one is working;
f. Accept gifts, tips, commissions or take advantage;
g. Discriminate in attention paid to matters in one’s charge, taking more or less care based on whom the matter comes from or for whom it is conducted;
h. Intervene directly, by third party or through simulated acts, in the obtainment of State concessions or any other State-related privilege that provides benefits to oneself or to third parties;
j. Maintain links that provide benefits to natural persons or bodies corporate overseen by the agency for which one is providing services;
k. Obtain directly or indirectly benefits originating from contracts, commissions, franchises or other acts formalized in one’s role as a public official;
l. Carry out or sponsor third parties to carry out judicial or administrative actions or proceedings, whether or not they are directly under one’s representation;
m. Direct, administer, advise, sponsor, represent or provide services, whether remunerated or not, to natural persons or bodies corporate, to Administration concessions within the state, departmental or municipal government framework, or to entities that may be suppliers or contractors of same;
n. Remove any document or object from one’s government department without first obtaining permission from a competent authority;
o. Practice an industry or commerce related to the activities of the State entity or agency for whom one is working, whether personally or as a partner or member of senior management, the administration or the receivership of for-profit companies;
p. Accept commissions, employment or pensions from other states, without the authorization of the Executive Branch.
Article 61 Prohibits public servants from collecting two or more salaries from State entities or agencies.
Article 62 Refers to the exception to the provisions of Article 61, with respect to part-time teaching.
Context of Law 1626/2000. About the Public Service and the Public Service Secretariat and its relationship to this report
§ Since the above-mentioned law is cited in many parts of this document as the source for answers, it will be placed in context, along with the entity that was created to enforce the law – the Public Service Secretariat. The purpose of Law 1626, promulgated in the year 2000, is contained in Article 1: to regulate the legal status of public servants and employees, advisors, and contract and auxiliary employees providing services to the Central Administration, in decentralized units, municipal and departmental governments, the Office of the Public Defender, the Office of the Comptroller, the Central Bank and all other State entities and agencies. The law contains 147 articles, 418 provisions of which were attacked as being unconstitutional before the Supreme Court of Justice by institutions from all three branches of the State, oversight bodies and unions of public servants, among others. The articles most under attack are Nºs. 124, 199, 208, 226, 114, 152 and 153. In the face of these lawsuits, the Supreme Court suspended the application of the articles until the cases are heard. The suspensions applied in the various legal proceedings favour only the plaintiffs. In addition, Article 145 of Law 1626/2000 replaced Law 200 of 17 July, 1970 - Charter of the Public Servant. However, as a consequence of the court challenges against various articles of the law, including Article 145, the Charter of the Public Servant once again applies in certain cases.
§ On 17 December 2000, the Public Service Secretariat, a dependency of the Presidency of the Republic, was created by executive decree; its responsibility is to enforce the law and promote the objectives of the public service by establishing technical standards.
Article 96 About the Powers of the Public Service Secretariat, establishes the authority to: (a) formulate the human resources policy of the public sector, taking into account the need for improved service as well as for efficient and transparent management; (b) organize and maintain an updated gender-based registry of the public service; (c) prepare a general regulation for the selection, admission, qualification, evaluation and promotion of government employees based on a public competition; (d) participate in the study and analysis of the standards that regulate the State retirement and pension system; (e) determine the training needs of public servants and establish the necessary training plans and programs; (f) advise the Central Administration, decentralized entities, and municipal and departmental governments with respect to the human resources policy to be implemented; (g) supervise the organization and operation of State entities or agencies in charge of managing human resources in the public service; (j) obtain the necessary reports from all sectors of the public service in order to carry out its objectives; (m) ratify and register internal bylaws and collective agreements governing working conditions within State entities and agencies, providing they fulfill the necessary requirements concerning content and form to be valid;
Article 97 About the functional structure of the Public Service Secretariat, stipulates that a structure shall be adopted enabling the Secretariat to carry out its mandate as established by Executive Branch decree. The necessary resources shall be provided from the National General Budget.
Article 99 About the nature of the Public Service Secretariat as a central regulatory agency, particularly when it comes to the public service and institutional development. The human resources offices or other equivalent offices of State entities or agencies shall act as decentralized operating units.
§ The Secretariat has 22 personnel, including 11 appointees, 5 contract employees and 6 commissioners. Additional information on its institutional structure is in the process of being collected.
Mechanisms to enforce standards of conduct designed to prevent conflicts of interest in the fulfillment of public functions
EX ANTE Content Standards
This section provides a detailed list of legislation that includes mechanisms for dealing with cases of individuals who are in the process of taking up public functions and whose backgrounds reveal a history of conflicts of interest. As well, information will be provided concerning the institution in charge of overseeing compliance and sanctions to be applied in the case of non-compliance.
§ Legislation compiled includes the National Constitution, Law 635/1995 Regulating Electoral Justice and Law 834/1996 establishing the Electoral Code of Paraguay.
§ The National Constitution
Article 273 With respect to elected positions, confers exclusive jurisdiction on Electoral Justice authorities in the judgment of acts and issues stemming from municipal, departmental and general elections, as well as of the rights and the positions of those elected. ...
§ Law 635/95. Regulating Electoral Justice.
Article 2. Functions. The convocation, organization, management, supervision, oversight and judgment of acts and issues stemming from municipal, departmental and general elections, as well as of the rights and the positions of those elected, are the exclusive jurisdiction of the Electoral Justice authorities...
Article 3. Jurisdiction. Electoral Justice authorities are charged to handle matters related to:
a) Conflicts stemming from municipal, departmental and general elections as well as all types of popular consultations established under the Constitution. f) Minor offenses provided for in the Electoral Code;......
§ Law 834/1996 Establishing the Electoral Code of Paraguay.
Articles 155 to 164 Regulate procedures for the formalization of candidacies. Chapter 3, which covers objections and challenges to candidacies, regulates issues related to claims and objections concerning candidacies for municipal, departmental and national positions.
EX POST Content Standards
§ Applicable constitutional provisions include the following Articles: 190 about Senators and Deputies (regulatory authority of each chamber of the National Congress, as well as the authority to issue warnings or admonitions for misconduct and to order suspension without pay); 193 about Ministers and other senior public servants (citation and interpolation); 225 about the President of the Republic, the Vice-President, Ministers of the Executive Branch, Ministers of the Supreme Court of Justice, the State Attorney General, the Public Defender, the Comptroller General of the Republic, the Assistant Comptroller and all members of the Superior Court of Electoral Justice; 163 about the jurisdiction of departmental governments; 168 about municipal powers.
§ Higher- or lower-ranking public servants not covered by the above-mentioned constitutional provisions are subject to some provisions of Law 1535/1999 About the Financial Administration of the State and its Regulatory Decree 8127/2000; Law 1626/2000 About the Public Service, which was commented on earlier, and finally the Labour Code, including the various respective Basic Charters and related internal bylaws.
§ Law 1535/1999 About the Financial Administration of the State.
Article 79º. The Directorate General of Standards and Procedures shall be charged with drawing up and implementing technical standards inherent to the organization, systems and procedures for administering the resources of the State (relative to the operation of the Integrated Systems of Financial Administration (SIAF), including the Administration of Human Resources (SINARH), in coordination with the Directorate General of Public Servants) and the basic standards for the system of classifying positions and determining the compensation of personnel employed by State entities and agencies.
§ Decree 8127/2000, Article 102 a. regulates the above-mentioned law and is concordant with the preceding article.
§ Law 1626/2000. About the Public Service.
Article14 about the conditions for entering the public service, including, among others, the obligation to present the following evidentiary documents prior to entering the public service: (e) proof of full possession of all civil and political rights; (f) certificate of judicial and police records; (g) proof of no previous history of misconduct in the public service.
§ In addition to the articles listed above, it should be pointed out that given the situation of the Public Service Secretariat, which is currently in the process of being set up, it is the duty of the institution for which the public servant will work to verify the documents presented. No data are available as to how such verification would be carried out.
§ In addition, based on the regulations compiled, there is no obligation to declare economic interests.
§ The majority of registries are manual. There is no comprehensive database with registries on previous records or declarations of interest, except those in the possession of the human resources departments of each institution.
Law 700/1996. Regulating Article 105 (prohibition of earning two wages) of the National Constitution.
Article 3 Establishes the corresponding sanction for public servants who collect more than one wage or salary simultaneously. They shall be declared dismissed with just cause from all their public positions and ineligible for the public service for a period of two years.
Article 4..... within 90 days of the effective date of this law, public servants or employees with more than one position must choose one of them. Failing this, the appropriate sanctions shall be applied.
Article 5 Stipulates that public entities shall remit a report to the Comptroller General of the Republic containing personal data of public servants and employees within 90 days following 1 January 1996. In subsequent years, and within the same 90-day period, the information to be remitted shall include the payroll of newly appointed public servants or employees and of those who are no longer in the employ of the institution.
Article 6 Stipulates that public servants who collect salaries or wages without providing services in return shall be ordered to return immediately all sums collected, plus legal interest, and be judged ineligible to work in the public service for one to five years.
Sanctions under the previous standards
Since conflicts of interest are not expressly typified as such, as regards sanctions applicable to those who fail to meet their obligations relative to preventing individuals with conflicts of interest from fulfilling public functions, the provisions of the following legislation shall apply:
§ National Constitution.
Article 106 About the personal responsibility of public servants in the case of committing transgressions, crimes and minor offenses in the fulfillment of their functions.
Article 190 About Legislative Branch bylaws. By a majority of two thirds, either chamber may admonish or reprimand any of its members for misconduct in the fulfillment of their functions, and suspend them for up to sixty days without pay.
Article 201 About the loss of Congressional Seats of Senators and deputies for the following reasons: violation of the causes for ineligibility and incompatibility established in the Constitution, and tangible evidence of improper use of influence.
§ Law 1084/1994. About the Prosecution of Magistrates.
Article 6 The same incompatibilities that apply to members shall also apply to magistrates.
§ Law 1626/2000. About the Public Service
Article 17 Provides that an act in law used to provide entrance to the public service in transgression of the law or its regulations shall be null and void, regardless of the amount of time elapsed. The acts of the individual involved shall be voidable, without prejudice to the administrative, penal or civil responsibility of those who appointed said individual. The civil responsibility of public servants, and contract and auxiliary employees shall always be personal and prior to that State, which shall be collaterally liable.
Article 63 Regulates sanctions at a generic level prior to proceedings;
Article 64 About administrative responsibility;
Article 65 About the principle of applying disciplinary measures based on the seriousness of the offence.
Article 68 Typifies serious offences, including the receipt of gratuities, gifts or advantages of any sort because of one’s position; misappropriation, embezzlement, withholding or diversion of public property and the appointment or hiring of public servants in transgression of the provisions of the law and its regulations.
Article 69 About disciplinary sanctions, ranging from suspension to removal or dismissal, with ineligibility to hold public positions for two to five years.
Article 72 About legal proceedings against the property of a public servant who causes damage to the State.
Article 73 About administrative proceedings established for the investigation of acts categorized as serious offences.
§ From a penal point of view, no specific regulations exist with respect to sanctions for conflicts of interest; nevertheless, Articles 160, 187, 192, 300, 301, 302, 303, 305, 313 and 318 of the Criminal Code could apply in some cases. As it stands, the Penal code, which is of a general nature, does not expressly typify the sanctions to be applied in the above-mentioned cases. Nevertheless, it has been included here because of its broad generic nature, which could enable its application in more specific cases.
Article 160 Appropriation
1) An individual who appropriates somebody else’s property, displacing the owner from the exercise of the rights which flow from that property by substituting himself or a third party, shall be punished by loss of liberty of up to five years or by a fine. Attempted appropriation shall also be punished.
2) When an individual appropriates somebody else’s property given to him in confidence or by virtue of any position which entails the obligation to return or to make specific use of said property, the punishment of loss of liberty can be increased up to eight years.
Article 187 Fraud 1) When an individual with the intention of obtaining undue pecuniary benefit for himself or a third party induces another individual, by means of a false declaration, to act in error and to dispose of all or part of his patrimony or that of a third party he represents, and thereby causes damage to patrimony by himself or his representative, he shall be punished by loss of liberty of up to five years or by a fine. 2) In such cases, attempted fraud shall also be punished. 3) In particularly serious cases, the punishment of loss of liberty can be increased up to eight years. ...
Article 188 Fraudulent Computer Operations. 1) An individual with the intention of ...................., influence the result of a data processing transaction through ……….shall be
punished by loss of liberty of up to five years or by a fine.
Article 192 Breach of Confidence. 1) An individual who, by virtue of a law, an administrative resolution or a contract, has assumed the responsibility of protecting a patrimonial interest related to a third party and who causes or fails to avoid damage to said patrimony within the framework of the protective mandate entrusted to him, shall be punished by loss of liberty of up to five years or by a fine.
2) For more serious cases, up to ten years.
Article 300 Passive Bribery: 1) A public servant who solicits, is promised or accepts a benefit in exchange for a service normally rendered during the proper conduct of his duties, either in the past or in the future, shall be punished by loss of liberty of up to three years or by a fine. ... 3) In such cases, attempted passive bribery shall also be punished ...
Article 301 Serious Passive Bribery: 1) A public servant who solicits, is promised or accepts a benefit in exchange for a service normally rendered during the proper conduct of his public functions, either in the past or in the future, and thereby interferes with his public functions, shall be punished by loss of liberty of up to five years or by a fine. ... 3) In such cases, attempted passive bribery shall also be punished ...
Article 302 Corruption: 1) An individual who offers, promises or guarantees a benefit to a public servant in exchange for services rendered or to be rendered in the future, and which depends on his discretional faculties, shall be punished by loss of liberty of up to two years or by a fine. …
Article 303 Serious Corruption: 1) An individual who offers, promises or guarantees a benefit to a public servant in exchange for services rendered or to be rendered in the future, and thereby interferes with his public functions, shall be punished by loss of liberty of up to three years. …
Article 305 Breach of Official Duty: 1) A ... public servant who is entrusted with handling or deciding a given legal matter and who willfully delivers an unfair judgement in favour of or against one of the parties shall be punished by loss of liberty of between two to five years.
2) For particularly serious cases, loss of liberty can be increased to up to ten years …
Article 313 Unlawful Collection of Fees. 1) A public servant, lawyer or other justice official… who collects fees or other illegal compensation on his behalf, shall be punished by loss of liberty of up to two years or by a fine. …
Article 318 About Inducing a Subordinate to Commit a Punishable Act. A superior who induces or attempts to induce a subordinate to carry out an illegal act in the fulfillment of his functions .... shall be punished by the penalty applicable to the punishable act.
Effectiveness of previous standards and mechanisms
§ It was not possible to compile information as to whether actions have taken place over the past five years that may have hampered access to or fulfillment of public functions, due to the lack of a central database or other functional equivalent which would enable data to be quantified.
§ With reference to the development of mechanisms designed to ensure compliance with each of the provisions mentioned, it should be pointed out that, according to its report, the Public Service Secretariat is currently handling some 800 cases that affect various State entities and agencies; more than 105 examining magistrates have been appointed to deal with the various administrative proceedings related to offences and allegations of acts of corruption involving public servants. This new administrative proceedings mechanism instituted under the law presupposes independence and transparency in enforcement and in action on the part of all intervening parties.
§ As well, in the same vein, the Supreme Court of Justice reported on the following suspensions and dismissals for the period 1995 - 2002: MEMBERS OF APPEAL COURTS: Suspensions: 7; EXAMINING MAGISTRATES: Suspensions: 29, Dismissals: 7, Reprimands: 3; JUSTICES OF THE PEACE: Suspensions: 33, Dismissals: 3; PUBLIC PROSECUTORS: Suspensions: 4; PUBLIC DEFENDERS: Suspensions: 1. Resignations based on resolutions of the Supreme Court of Justice for the same period are: MEMBERS OF APPEAL COURTS: 6; MEMBERS OF ELECTORAL COURT: 3; EXAMINING MAGISTRATES: 13; ELECTORAL JUDGES: 1; PUBLIC DEFENDERS: 5; JUSTICES OF THE PEACE: 24; PUBLIC PROSECUTORS: 2; LABOUR LAWYERS: 2; LABOUR LEGAL REPRESENTATIVE; 1. These dismissals have been mentioned because in many cases they occurred immediately prior to court proceedings.
§ Another similar example is that of Agreement and Decision No. 10/98 of the Superior Court of Electoral Justice, 1st Division, in the case of “Electoral Prosecutor of the Central Department and complainant” resolved to declare an individual ineligible to hold the position of municipal councillor in the city of Ñemby, and, as a consequence, to order that he be replaced by the deputy councillor, Mr. ... who should immediately assume the position. Agreement and Decision No. 22/98 in the case of “............. Deputy Councillor for the ANR (Colorado Party) in the district of San Antonio and complainant” resolved to declare Mr. .... ineligible to hold the position of municipal councillor of San .............., while maintaining a public service position with ANDE.
The Public Service Secretariat is currently in the process of signing a non-refundable Technical Cooperation Project with the World Bank; one of its components involves conducting a national census of public servants, which will include data such as those being requested.
§ The Council of the National System for Integrity, which promotes the National Probity Plan, is in the process of preparing a draft law on a Code of Ethics for Public Servants that would expressly establish honourable standards of conduct.
1.2. Conservation and proper use of resources entrusted to government officials in the performance of public functions.
The report attempts to answer questions related to (a) the existence of standards; (b) whether the standards are applicable to: anyone fulfilling public functions or only a specific category of public officials. An attempt was made, to the extent possible, to present information related to issues concerning:
(i) Use of assigned property and resources, (ii) obligation to conserve property and resources that have been entrusted to a public servant based on his functions, and to prevent the loss, injury or unauthorized use of said resources, (iii) obligation to safeguard documentation he has obtained because of his functions, and to prevent its unauthorized removal, destruction, concealment or use, (iiii) obligation to safeguard restricted information obtained because of his functions, and to prevent its unauthorized removal, disclosure, concealment or use, (iiiii) compensation to the State for damages caused.
§ The National Constitution contains various provisions related to resources, including a definition and the way they should be used and controlled through the National General Budget. This issue is also closely linked to “responsibility”, and provisions of the National Constitution cover administrative, civil and penal responsibility. In addition, the Constitution attributes jurisdiction to departmental and municipal governments when it comes to the administration and protection of resources.
Article 178 About the Resources of the State. In order to achieve its objectives, the State shall establish taxes, fees, contributions and other resources; ... collect royalties from its statutory rights; contract small domestic or international companies to participate in national development programs; regulate the financial system of the country, organize and set monetary policy, and construct the monetary system.
Article 216 About the National General Budget, which specifies, among other things, the process for approving the draft National General Budget to be presented annually by the Executive Branch ....
Article 238 About the Duties and Powers of the President of the Republic. Included among the duties and powers of the individual acting as President of the Republic and having to do with the management of resources are: to direct the general administration of the country, to report to Congress at the beginning of each annual session of meetings, and to prepare and present the annual draft National General Budget for the consideration of both Chambers;
Article 282 About Reports and Opinions concerning the spending of the previous year’s budget, which the President of the Republic, as titular head of the State Administration, is required to send to the Office of the Comptroller General of the Republic.
Article 106 About the Responsibility of Public Officials and Employees stipulates that: ..., are personally responsible, without prejudice to the collateral responsibility of the State and the right of the latter to repeat the payment of the amount credited under such an arrangement.
Article 161 About the Jurisdiction of Departmental Governments, outlines in paragraph (2), among other responsibilities, the preparation of a departmental development plan which must be coordinated with the National Development Plan, as well as the preparation of an annual budget, to be included in the overall National General Budget.
Article 168 About Municipal Powers, among others, 2) the administration and disposal of municipal property, 3) the preparation of a budget forecasting income and expenditures;...
Article 169 About Real Estate Tax, stipulates the jurisdiction of municipalities when it comes to directly levying and collecting property taxes.
Article 170 About the Protection of Resources, stipulates that no State institution, autonomous or self-governing or decentralized entity may appropriate the income or revenues of municipalities.
§ Relevant regulations have been identified in the following lower-ranking laws: 1183/1985 About the Civil Code; 1294/1987 Municipal Charter; 276/1993 Basic and Operational Charter of the Office of the Comptroller General of the Republic; 1535/1999 and Decree 8127/2000, and 1626/2000.
§ Law 1183/1985 About the Civil Code
Article 1845 provides that senior officials, public servants and employees of the State, municipalities and public agencies shall be responsible, directly and personally, for illegal acts committed in the fulfillment of their functions. Both the authors and co-authors shall be jointly responsible. The State, municipalities and public agencies shall be jointly responsible for the authors and co-authors in the event of their insolvency.
§ Law 1294/1987 Municipal Charter.
Article 236 Members of the Council shall be personally responsible with their property, in accordance with penal and civil laws, for damages caused to municipalities in the fulfillment of their functions, for acts and transactions authorized in contravention of prevailing legal provisions, unless the councillor has recorded his or her dissenting vote in the minutes of the respective meeting, or was absent.
The Superintendent and other municipal officials shall be subject to civil and penal responsibility in the event of non-compliance with the provisions of this law in the fulfillment of their functions. However, an action to enforce civil responsibility is subject to a two-year statute of limitations beginning on the termination date of said functions.
§ Law 276/1993 Basic and Operational Charter of the Office of the Comptroller General of the Republic.
Article 9 Included among the duties and powers of the Office of the Comptroller General, g) provides for the reporting to the courts and to the Executive Branch of any offense of which it may be aware in the performance of its specific functions, being jointly responsible by omission or abuse of power with the agencies under its control when they act in a deficient or negligent manner;
§ Law 1535/1999. About the Financial Administration of the State.
Regulates the financial administration of the State. This law establishes the Integrated System of Financial Administration (SIAF) that shall be obligatory for all State entities and agencies in the implementation of their institutional objectives, programs, goals and functions; this law also establishes the management, supervision, evaluation and control mechanisms necessary for the smooth functioning of the system.
Article 3 The SIAF shall apply to the legislative, executive and judicial branches, including their divisions and agencies, the Central Bank, Departmental governments, autonomous and self-governing entities, public social security entities, crown corporations, mixed corporations and official financial entities, National Universities, the Council of Magistrates, the Office of the Attorney General, Electoral Justice, the Jury for Prosecution of Magistrates, the Office of the Public Defender, the Office of the Comptroller General of the Republic; it shall also apply to the municipalities and, in terms of accountability, to all foundations, non-governmental organizations, natural persons or bodies corporate, mixed or private companies that receive or administer public funds, services or property or that benefit from Treasury Department credit facilities and guarantees.
Article 4 The Ministry of Finance shall be in charge of administering the System...
Article 5 About the National General Budget, which is the instrument for attributing financial resources for achieving State policies and objectives. Constitutes the financial expression of the annual work program of State agencies and entities. The budget forecasts the amount and origin of income, determines the amount of authorized expenditures and establishes financing mechanisms.
Article 82 establishes the responsibility of authorities and public officials who cause the loss of public funds as a result of acts or omissions contrary to their legal obligations; they shall be responsible with their personal property for losses and damages caused, without prejudice to their penal or disciplinary responsibility.
Article 83 Infractions
a) engage in the deviation, withholding or misappropriation of public funds;
b) administer resources and other political rights without acting in accordance with the provisions regulating their use and the collection of revenues by the Treasury;
c) incur expenses and order payments without sufficient credit to do so or in violation of the prevailing Law on Budgets;
d) allow undue payments when fulfilling obligations or sending documents based on entrusted functions;
e) fail to render required regulatory accounts, to do so with notable delay or to present accounts with serious defects; and
f) any other act or resolution in violation of this law, or any other standard applicable to the administration of public income and expenditures.
Article 84. Action to be Taken Concerning Infractions. Upon being made aware of the existence of infractions such as those listed in the previous Article, the hierarchical superiors of those presumed responsible shall initiate the appropriate formalities and take the necessary measures to protect the rights of the public administration; such infractions shall immediately be brought to the attention of the Department of Finance, the Office of the Auditor General of the Executive Branch and, if appropriate, the Office of the Comptroller General of the Republic, in order that they may proceed based on their jurisdiction and in accordance with established procedure.
§ Decree Nº 8127/2000 Regulating the Implementation of Law 535/1999 About Financial Administration.
Article 106 Responsibilities. Individuals who order expenditures, or public servants who carry out such functions by delegation, and the paymaster, shall be personally and jointly responsible with their property for the commitments, obligations and payments effected beyond the budgetary mandate, or the failure to comply with the technical specifications particular to each program, without prejudice to the sanctions established in the Law on Public Servants and the corresponding procedure.
§ Law 1626/2000. About the Public Service
Article 57 Outlines as obligations of public servants, without prejudice to those laid down in the internal bylaws of the respective State entities or agencies, f) to maintain professional secrecy, o) to ensure the rational use and conservation of the public wealth entrusted to them.
Article 64 Public servants shall incur administrative responsibility for the failure to carry out their duties or obligations, or for infringement of the prohibitions established in this law and similar laws, making them liable to the disciplinary sanctions stipulated in this chapter.
Article 65 Disciplinary measures shall be applied taking into account the seriousness of the offence committed and the attenuating or aggravating circumstances related to the act.
Article 68 Grounds for an offence to be considered serious: e) failure to comply with obligations or transgression of the prohibitions established in this law, h) misappropriation, embezzlement, withholding or deviation of public property and committing punishable acts typified in the Criminal Code against the State and against public officials...
§ In addition to the laws mentioned above, the National Congress promulgates annually the National General Budget, which has the force of law and is regulated by the Executive Branch. There are also other regulations with respect to the financial system that govern issues related to the conservation of documents.
Mechanisms to enforce compliance with previous standards
§ National Constitution
Article 246 About the Office of the Government Attorney for Patrimonial Affairs. The duties and powers of the Government Attorney include: 1) to represent and defend, both judicially or extra-judicially, the patrimonial interests of the Republic.
Article 265 About the Court of Audit and Auxiliary Courts and Organizations. Establishes the Court of Audit.
Article 268 About the Duties and Powers of the Attorney General’s Office
1) ensure respect for constitutional rights and guarantees,
2) promote public penal action to defend social and public patrimony ...
3) take penal action in cases where, to initiate or prosecute a case, it was unnecessary to have one party make such a request, without prejudice to the magistrate or court proceeding officially when the law so stipulates,
4) obtain information from public servants in order to better carry out its functions.
Article 281 About the Nature, Composition and Term of the Office of the Comptroller General of the Republic. This agency is the entity in charge of the economic and financial activities of the State, and of the Departmental and Municipal governments, in the manner determined by this Constitution and by the Law....
Article 282 About Reports and Opinions. The President of the Republic, as titular head of the State administration, shall send to the Office of the Comptroller General an accounting of the use of the previous year’s budget within four months following the end of the fiscal period. In turn, within the next four months, the Office of the Comptroller General shall present a report and opinion to Congress for the consideration of each of the Chambers.
Article 283 About the Duties and Powers of the Comptroller General of the Republic:
1) Control, oversight and audit of public property and State patrimony, as well as the property and patrimony of regional or departmental entities, municipalities, the Central Bank and other State or mixed-ownership banks, autonomous, self-governing or decentralized entities and State-owned or mixed-ownership corporations.
2) Control over the spending and accounting of the use of the National General Budget,
3) Control over the spending and accounting of the use of the budgets of all the government-related entities mentioned in paragraph 1), as well as over the review of their accounts, funds and inventories.
4) The audit of the national accounts of multinational corporations or entities in whose equity the State participates in a direct or indirect manner, based on the terms of the respective treaties.
5) The power to require reports on fiscal and patrimonial management from any individual or public, mixed or private entity that administers funds, public services or State property as well as from departmental or regional entities or municipalities, all of whom must make available the documentation and vouchers needed to insure proper fulfillment of the Comptroller’s functions.
7) The power to make reports to the courts and to the Executive Branch of any offence of which it may be aware as a result of its specific functions, being jointly responsible by omission or abuse of power, with the agencies under its control when they act in a deficient or negligent manner;
§ Law No 276/1993. Basic and Operational Charter of the Office of the Comptroller General of the Republic
Article 1 This agency controls the economic and financial activities of the State, and the Departmental and Municipal governments. It has functional and administrative autonomy.
Article 2 The mandate of the Office of the Comptroller General is to oversee the compliance of legal standards related to the financial administration of the State and to protect the public patrimony; it establishes standards, necessary procedures and carries out periodic financial, administrative and operational audits; it controls the normal and legal collection of resources as well as the expenditure and investment of funds from the public, multinational, national, departmental, or municipal sectors, without exception, and of agencies in which the State has a participation or holds a patrimonial interest.... ; and recommends, in general, standards of internal control for entities subject to its supervision.
Article 9 Lists the duties and powers of the Office of the Comptroller General of the Republic, in accordance with the constitutional provisions listed above.
Article 10 About the power to require reports from any entity or office subject to its control, and to issue directives within the scope of its jurisdiction. Providing such reports shall be obligatory for the public servants and agencies or private enterprises referred to in each specific case, .....
Article 15 About the review and inspection of the books, registers and documents relative to the accounting of the State, regional or departmental entities, municipalities, the Central Bank and other State or mixed-ownership banks, autonomous, self-governing or decentralized entities and State-owned or mixed-ownership corporations, as well as those of multinational companies or entities and any other entities in whose equity the State participates, directly or indirectly, according to the terms of their respective basic charters.
Article 20 With respect to audit and control procedures, the Office of the Comptroller General has the power to petition examining magistrates of the civil court in the appropriate judicial jurisdiction to search domiciles, offices, warehouses or other enclosures, with the help of the police; magistrates shall grant such a request within a period of twenty-four hours, if appropriate.
Sanctions under previous standards
Due to their general nature, the same sanctions as those listed in the first section on Conflicts of Interest apply, in addition to the following:
§ Law About the Administrative Organization of the State/1909
Article 158 Repayment of misappropriated funds and interest payments.
Law 1626/2000 About the Public Service
Article 69 The following disciplinary sanctions shall be applied in the case of serious offences:
a) suspension of the right to a promotion for a one-year period;
b) suspension from one’s position without pay for up to thirty days; or,
c) destitution or dismissal, with ineligibility to hold public positions for two to five years.
The offences described in paragraphs h), i) j) and k) of the previous Article shall be sanctioned by destitution.
Article 71 Authority responsible for applying sanctions. Disciplinary sanctions corresponding to serious offences shall be applied by the highest authority in the State entity or agency for which the public servant in question is providing services...
Article 74 Procedure: After administrative proceedings, without prejudice to remitting the case to the regular penal jurisdiction in the case of a punishable act. (Plaintiff: administrative authority of the institution. Defendant: public servant in question)
Article 72 Public Responsibility of Public Servants. If a public servant causes damage to the State, the latter shall take action against the property of the public servant in order to collect appropriate compensation.
Article 80 Administrative proceedings are independent of any other proceedings that may be initiated against the public servant in the regular courts...
Article 81 An administrative sanction imposed on a public servant for the commission of an offence shall apply without prejudice to the civil and penal responsibility of said public servant for the act in question.
Article 82 Prescription of Action. The authority of the State entity or agency to apply the sanctions established in this law is subject to a statute of limitations of one year beginning on the day on which the entity became aware of the act or omission that led to the sanction. Nevertheless, in the case of punishable acts, the disciplinary action shall be subject to the same statute of limitations as the penal action. Prescription of action shall be interrupted upon the initiation of administrative proceedings.
Effectiveness of previous standards and mechanisms
§ Data related to the following questions are still in the process of being compiled. Nevertheless, due to the diversity of institutions that may possess data at the different phases, and since there are no databases that enable us to compile data in a systematic fashion, it is more than likely that there is no clear and illustrative set of responses as to whether:
1. In the past five years there has been an increase or a decrease in cases of public corruption contrary to the proper conservation and use of public resources. Such an answer should be supported by corresponding statistical data.
2. In the past five years sanctions have been applied
3. In the past five years measures have been taken to render effective the duty to compensate the State for damage caused to the public treasury for corrupt practices in the performance of public functions.
§ In addition, the Office of the Comptroller General of the Republic publishes an Annual report that lists the audit and control activities and interventions being taken. A report will be submitted based on the data compiled from this source.
§ As well, the Attorney General’s Office has been requested to provide related data, and has reported that it is currently in the process of complying.
1.3. MEASURES AND SYSTEMS REQUIRING PUBLIC OFFICIALS TO REPORT TO APPROPRIATE AUTHORITIES ACTS OF CORRUPTION IN THE PERFOMANCE OF PUBLIC FUNCTIONS
§ The relevant legislative provisions of the National Constitution are contained in Articles 106 and 18. As well, the following specific laws have been identified. 1173/1985 Customs Code; 125/1991 About the New Tax System; 276/1993 About the Office of the Comptroller General of the Republic; 1626/2000 About the Public Service; 1562/2000 Charter of the Office of the Attorney General; 1535/1999 About the Financial Administration of the State (and its Regulatory Decree 8127/2000), among others.
§ National Constitution
Article 106 About the Responsibility of Public Officials, already commented on in other sections.
Article 18 About Restrictions on Questioning stipulates that no person can be obliged to testify against themselves, their spouse or the person with whom they are united nor against their relatives within the fourth degree of blood relationship or the second degree of kinship by marriage, inclusive. The shameful or illicit acts of the accused shall not affect his or her relatives or close relations.
§ Law 1173/1985 Customs Code
Article 238. Reporting by Individuals and Customs Officials. Any person who is capable, civilly speaking, is entitled to report customs offences and infractions to the appropriate authorities. Customs officials are obliged to report acts discovered in the fulfillment of their functions that could represent customs offences or infractions. Failing to comply with this obligation shall make them subject to the appropriate sanctions.
Article 239. Distribution of Fines and Seizures. Of the fines applied in cases of offences fraudulent acts, fifty percent (50%) shall be awarded to the petitioners and fifty percent (50%) to the National Treasury. Of the sum of fines and seizures imposed on contraband-related infractions, fifty percent (50%) shall be awarded to the National Treasury and the other fifty percent (50%) shall be divided among the petitioners and the apprehenders. Said distribution shall take place once the resolution imposing sanctions has been adopted.
§ Law 125/1991 About the New Tax System.
Article 238 About reporting infractions.
Article 239 About fines and their distribution.
§ Law 276/1993 About the Office of the Comptroller General of the Republic.
Article 9 Already commented on in previous sections.
Resolution N°. 0101 of the Office of the Comptroller General of the Republic, dated 21 February 2001. Formal requirements for presenting reports to the Office of the Comptroller General of the Republic:
a. Presented in writing. b. Contain the following data: name and surname, identification documents and proof of domicile of the petitioner, public sector entity or institution that is the object of the report, a precise, exact description of the acts and circumstances, accompanied by data, reports and documents related to the report.
The Office of the Comptroller General may request the petitioner or the institution that is the object of the report to provide further information prior to deciding on the appropriateness of the report. As well, the Office of the Comptroller General is empowered to reject the report in the event that it does not meet the necessary formal requirements, or if the acts being reported fall under the exclusive jurisdiction of other State agencies.
§ Law 1535/1999 About the Financial Administration of the State (and its Regulatory Decree 8127/2000).
Articles 82 - 84 have already been summarized in the section corresponding to use and conservation of resources, Chapter 1.3.
§ Law 1626/2000 About the Public Service
Article 57 Paragraph h) of this article stipulates that public officials must report in a timely fashion to the regular courts or to a competent authority punishable acts or irregularities of which they become aware in the performance of their functions;
§ Law No 1562/2000 Charter of the Office of the Attorney General
Article 10 The Office of the Attorney General shall protect those who run the risk of being harmed for collaborating with the administration of justice, particularly in the case of punishable acts linked to organized crime or related to abuses of power or human rights violations. In this respect, it shall establish a permanent protection program on behalf of witnesses, victims and its own public officials. This program has not yet been set up
Projected Improvements: none identified to date.
CHAPTER 2 – SYSTEMS FOR DISCLOSING INCOME - ARTICLE III, 4.
Information shall be provided with respect to the existence of the obligation to disclose income, assets and liabilities, to whom, at what point in time, and the obligation to publicize said disclosure. As well, whether or not there are exceptions to the provisions that require income, assets and liabilities to be disclosed and whether the former apply to relatives (for example, spouse, children, etc.). Finally, the sanctions provided for those who fail to meet this obligation shall be described.
§ National Legislation related to this question is contained in: the National Constitution, Articles 104 and 283; in Law 276/1993 Basic and Operational Charter of the Office of the Comptroller General of the Republic, Article 9; Law 1626/2000 About the Public Service, Articles 57, 63, 68 and 69. These last three articles refer to sanctions.
The obligation to make a sworn declaration of assets and income is established in Article 104 of the National Constitution. This provision obliges public servants and employees, including elected officials, those from state, bi-national, self-governing, and decentralized entities and, in general, persons collecting ongoing remuneration from the State, to make such a declaration within 15 days of having taken up their position and within the same time period upon leaving said position.
§ Paragraph 6) of Article 283, which establishes the duties and powers of the Comptroller General of the Republic, empowers the Comptroller General to receive sworn declarations of property from public officials as well as to record these declarations in a registry. The Comptroller General also has the power to issue an opinion on the correspondence between the declarations presented upon taking up and terminating said positions.
§ Concordant with this legal provision, Article 9 f) of Law 276/1993 Basic Operational Charter of the Office of the Comptroller General of the Republic, goes even further in stipulating that the Office of the Comptroller General shall make available the reports contained in the registry at the express request of the Executive Branch, of either of the Chambers of National Congress, the Attorney General, the Government Attorney for Patrimonial Affairs, the Bicameral Investigating Committee on Illicit Acts, and competent jurisdictional agencies.
§ Similarly, Article 57 I) of Law 1626/2000, which establishes the obligations of public servants, stipulates the obligation to present a sworn declaration of property and income in the time period and format provided for under the Constitution and the law.
§ It should be noted that no public servants are exempt from making such disclosure. However, the obligation is limited to public servants and does not extend to relatives.
§ Article 63 of Law 1626/2000 stipulates that failure to comply with the provisions of Chapter IX, including the obligation to present a sworn declaration of property and
§ income, shall be sanctioned prior to summary administrative proceedings.
§ The sanctions provided for those who fail to comply with the obligation of disclosing their income are outlined in Article 68 of the Law, and are of a general nature. Article 69 establishes the list of offences, which have already been detailed in other sections of this report.
Draft Law for Improving the Current System of Disclosing Income and Property
The Justice and Labour Committee of the Chamber of Deputies is currently in the process of presenting a draft law relative to the improvement of the current system; the Chamber of Deputies expects to promulgate this law during the current year. The draft legislation contemplates various characteristics of the model framework for the disclosure of assets and liabilities, publicity and inclusion of international best practices. Discussion of the draft law is being coordinated by the Council of the National System for Probity as part of a joint work plan being carried out with the above-mentioned committee.
CHAPTER 3 – OVERSIGHT BODIES. ARTICLE III, 9.
This chapter will review the regulatory framework relative to the existence, or not, of the oversight bodies referred to in previous articles, and list their main characteristics.
§ The national legislation related to this section is contained in: Articles 244, 245, 246, 265, 266, 272, 281 and 284; of the National Constitution; Law on Administrative Organization /1909; Law 276/1993 Code of Judicial Organization, Law 1562/2000, Law 1535/2000 and the Criminal Code of Procedure.
§ The chart below details aspects of its main characteristics, maximum authority, method of appointment and duration of function.
Office of the Comptroller General of the Republic
Audit Court, 2nd Division
Office of the Attorney General
Office of the Auditor General – Executive Branch
Office of the Government Attorney for Patrimonial Affairs
Bicameral Investigating Committee
Constitution Section II.
Articles 281- 284.
Article 59, 63, 65, 68, 69.
Law on Administrative Organization /1909, Arts.19 and 42.
Law 276/1993, Article
Code of Judicial Organization.
Constitution. Section IV.
Articles 266- 272.
Law 1535/00, Article 62.
Constitution. Section III.
Articles 244, 245 y 246.
Criminal Code of Procedure
Constitution Article 195.
External control, oversight and audit of public property or of the patrimony of the State, regions, municipalities, departments, State-owned banks in general, State-owned corporations as well as the various State entities. Control over the implementation and accounting of the National Budget and of minor entities as well as of reporting to the Executive Branch, Office of the Attorney General and/or penal jurisdiction on the commission of any punishable acts.
Judgement of accounts, funds, inventories and investments of the divisions, companies, establishments and persons who administer, collect or invest fiscal securities or other securities on behalf of the public. Repayment of poorly invested or poorly implemented amounts and imposition of payment of interest. Remitting of reports to the penal jurisdiction and/or Office of the Attorney General in the event that the commission of a punishable act has been substantiated as a consequence of said judgement.
Represents society in the control and judgement of public accounts before the Audit Court, Second Division and exercises the punitive power of the State in penal courts of law.
Internal Control. Auditing of agencies reporting to the Executive Branch as well as the regulation and supervision of institutional internal audits.
Representation and defence (judicial and extra judicial) of the patrimonial interests of the Republic.
Designated by the Chamber of Deputies by majority vote based on short lists prepared by the Senate.
Designated by the Supreme Court of Justice based on short lists drawn up by the Council of Magistrates.
Attorney General appointed by the Executive Branch in agreement with the Senate and based on short lists drawn up by the Council of Magistrates.
Fiscal Agents: Designated by the Supreme Court of Justice based on short lists drawn up by the Council of Magistrates.
Direct appointment by Executive Branch.
Direct appointment by Executive Branch.
§ The institutional framework and other operational aspects of each of these institutions are in the process of being compiled.
CHAPTER 4 - MECHANISMS TO ENCOURAGE PARTICIPATION BY CIVIL SOCIETY. ARTICLE III, 11
§ Constitutional provisions concerning participation are general in nature and are detailed separately below. There are no regulations. Lower-ranking legislation that includes mechanisms to encourage participation by citizens is as follows: Law 1294/1987. Municipal Charter; Law 635/95. About Electoral Justice; Law 834/1996. About the Electoral Code.
§ National Constitution
Article 1 About the Type of State and Government, which states that the Republic of Paraguay is constituted as a social state of law and adopts as its system of government a representative, participatory, and pluralistic democracy which is founded on the recognition of human dignity.
Article 3 About Public Powers. The people exercise public powers through their right to vote.
Article 28 About the Right to Obtain Information. Everyone has free access to public sources of information.
Article 30 About Electromagnetic Communications Signals. The law shall ensure equal opportunities for everyone to have free access to the electromagnetic spectrum, as well as the electronic instruments used to collect and process public information....
Article 32 About Freedom of Assembly and Demonstration.... without having to ask for permission.
Article 38 About the Right to Defend Common Interests. Everyone has the right, either individually or within a group, to demand that public officials adopt measures to defend...
Article 40 About the Right to Petition Authorities. Everyone, either individually or within a group, and without having to meet any special requirements, has the right to make written petitions to government authorities.
Article 117 About Political Rights. Citizens of either sex have the right to participate in public matters, directly or through their representatives.
Article 118 About Suffrage. Suffrage is a right, a duty and a public function of a voter.
Article 123 About Popular Initiatives. Voters have the right to propose draft laws to Congress through popular initiatives.
§ Law 1294/1987 Municipal Charter.
Articles 75 to 79. Community Neighbourhood Committees shall be created and filled by Resolution of the Municipal Administration......
Article 80 About the functions of Community Committees.
Articles 86 to 88 About Urban Development Committees, which shall report to the Municipal Administration and play the role of a support agency.
§ Law 635/1995. About Electoral Justice.
Articles 34 and 35 about civic committees, their nature and requirements.
§ Law 834/1996. About the Electoral Code.
Article 259. About Referendums, a form of popular consultation held in accordance with conditions and procedures regulated by the Electoral Code.
Article 266. About popular initiatives, concerning the requirement to set up a committee to promote such initiatives, made up of five voters.......
Not identified. CISNI is planning to present a Draft Law on Citizen Participation.
CHAPTER 5 – ASSISTANCE AND COOPERATION (ARTICLE XIV)
The Republic of Paraguay has signed the following Multilateral and Bilateral Treaties in the area of International Judicial Cooperation.
Inter-American Convention on Letters Rogatory
Inter-American Convention on the Taking of Evidence
Inter-American Convention on Execution of Preventive Measures
Inter-American Convention on Proof and Information on Foreign Law
Additional Protocol to the Inter-American Convention on Letters Rogatory
Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgements
Additional Protocol to the Inter-American Convention on the Taking of Evidence Abroad
Inter-American Convention on Mutual Assistance in Criminal Matters
Inter-American Convention on Serving Criminal Sentences Abroad
Protocol on Precautionary Measures (Ouro Preto, 1994)
Protocol on Mutual Judicial Assistance in Criminal Matters (San Luis, 1996)
Convention Enhancing the Treaty of Montevideo of 1889 on Legislation Concerning Letters Rogatory Between the Republics of Paraguay and Argentina
Convention on Judicial Assistance in Legal Matters Between the Republic of Paraguay and the Republic of Peru
Convention on Judicial Assistance in Legal Matters Between the Republic of Paraguay and the Republic of Venezuela
Convention on Judicial Assistance in Legal Matters Between the Republic of Paraguay and the Republic of Costa Rica
Convention on Judicial Assistance in Legal Matters Between the Republic of Paraguay and the Republic of Uruguay
Convention on Judicial Assistance in Legal Matters Between the Republic of Paraguay and the Republic of Colombia
Convention on Judicial Assistance in Legal Matters Between the Republic of Paraguay and the Republic of Ecuador
Treaty on the Transfer of Convicted Persons Between the Republic of Paraguay and the Republic of Argentina
Treaty on the Transfer of Convicted Persons Between the Republic of Paraguay and the Federative Republic of Brazil
Treaty on the Transfer of Convicted Persons Between the Republic of Paraguay and the Republic of Bolivia
Treaty on the Transfer of Convicted Persons Between the Republic of Paraguay and the Republic of Peru
§ The Articles of the Criminal Code of Procedure that apply to Extradition are listed below:
Article 146 Letters Rogatory. Petitions directed to judges or foreign authorities shall be made through letters rogatory and shall be transmitted in the form established by prevailing international law, domestic legislation, and international customs. Nevertheless, urgent communications shall be directed directly to appropriate foreign judicial or administrative authorities, in anticipation of the petition or the response to a petition.
Article 147 Extradition. Acts relative to the extradition of accused or convicted persons shall be governed by prevailing international law, by domestic legislation, by international customs or by rules of reciprocity when no applicable standard exists.
Article 148 Active Extradition. A request for the extradition of an accused shall be decreed by a criminal court judge upon petition of the Office of the Attorney General or of the plaintiff, and shall be transmitted through diplomatic channels. A request for extradition shall not be formulated if provision has not been made for personal preventive measures. A request for the extradition of a convicted individual shall be decreed ex offico by the executory judge.
Article 150 Preventive Measures. The criminal court judge receiving the request may order the provisional detention and preventive imprisonment of the person subject to extradition, as long as the existence of a judgement has been invoked....
§ Judicial Authorities in Paraguay have neither made nor received any request for mutual assistance within the framework of the said Convention through the Department of Foreign Affairs.
CHAPTER 6 – CENTRAL AUTHORITIES (ARTICLE XVIII)
The Council of the National System for Probity – CISNI – is the consultative central authority for the Convention under Decree Nº 16.735, 19/03/2002. This same decree created the Interinstituional Technical Support Committee – CITAIC – which is made up of representatives from CISNI, the Office of the Comptroller General of the Republic, the Office of the Attorney General, the Ministries of Justice and Labour, and the Ministry of Finance. CISNI is in charge of coordinating the work of the Committee.
Presidency of the Republic, Ministry of the Interior, Ministry of Foreign Affairs, Ministry of Finance, Supreme Court of Justice, Office of the Comptroller General of the Republic, Office of the Attorney General, Chamber of Senators, Chamber of Deputies, National Republican Association – Colorado Party, Authentic Radical Liberal Party, National Encounter, Youth for Democracy, National Farm workers Association, National Workers Central, Chamber of Stock Exchange and Commerce, Association of Non-governmental Organizations of Paraguay (POJOAJU), the Catholic Church and other individuals acting in their personal capacity.
§ This Council, which is chaired by a representative of the Presidency of the Republic, is mandated to promote the National Probity Plan.
§ The National Probity Plan – PNI – is a strategic plan for fighting against corruption; the objective of the plan is to transfer structural anti-corruption technology to the government and to strengthen the capacity of civil society to participate in the fight against corruption. The plan covers three areas of work – Customs, Justice and Public Procurement – that were identified as being the most vulnerable to corruption.
§ CISNI is financed by the Program in Support of Implementation of the National Probity Plan – ATN/SF Nº 7251 of the Inter-American Development Bank (Non-refundable Technical Cooperation project). It is expected that this two-year project will be concluded in 2003, following which CISNI will no longer have any financial resources.
III. CONCLUSIONS AND RECOMMENDATIONS