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

MEMBERS Institutional representatives	INSTITUTION (alphabetical order)
Graciela Sánchez	Council of the National System for Probity - CISNI
Mario A. Estigarribia M. Benita Dárdano	Office of the Comptroller General of the Republic - CGR Advisor to Assistant Comptroller General of the Republic
Fernando Canillas	Ministry of Justice and Labor - MJT
Member at large	Ministry of Finance – MH
Carlos Lezcano	Public Ministry – MP
Aurelio Zárate Arce	Public Service Secretariat

Asunción, Paraguay, 30 August 2002

INTRODUCTION

§ 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

Chapter

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.

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 N^os1066/1965. 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.

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.

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.

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.

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 N^o276/1993. 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.

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.

§ 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.

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:

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;

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

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.

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. ...

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;......

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.

§ 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.

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.

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.