Junta Asesora en Materia Económico Financiera del Estado
(Advisory Board for State Financial-Economic Matters)
URUGUAY
COMMENTS ON THE PRELIMINARY DRAFT REPORT ON IMPLEMENTATION OF THE CONVENTION PROVISIONS SELECTED FOR REVIEW IN THE SECOND ROUND AND FOLLOW-UP ON THE RECOMMENDATIONS FORMULATED IN THE FIRST ROUND
Montevideo, November 2006.
- CONCLUSIONS AND RECOMMENDATIONS REGARDING THE IMPLEMENTATION OF THE CONVENTION PROVISIONS SELECTED IN THE SECOND ROUND
- SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION)
- Government hiring systems
Recommendation formulated in 1.1.: Regarding the measures suggested in 1.1.b): there is now an announcement on the Internet to register for vacancies in decentralized administrations such as the Municipal Intendency of Montevideo and the National Administration of Sanitation Works (OSE). A few weeks ago the Banco de Seguros del Estado– the State Insurance Bank - and Banco de la República Oriental del Uruguay also published vacancy announcements.
1.2. Government systems for procurement of goods and services
Recommendations formulated in 1.2.1: These have been noted, notwithstanding the measures suggested in:
1.2.1. a):For procurement processes conducted in accordance with the provisions of Article 33 of the TOCAF, Law No. 16,736 of January 5, 1996 (Article 738), a certification of all purchasesmust first be issued by the Ministry of the Economy and Finance stating the reasons for the procurement, the prices and market conditions. The exception foreseen in sub-paragraph h) only applies to primary purchasers (TOCAF, Article 27) and the exception in sub-paragraph i) was delegated to the Ministers of State and other secondary purchasers (TOCAF, Article 29) but only for contracts for less than 25% of the value of the short tender (Executive Branch Resolution No. 457/991 of June 27, 1991).
1.2.1. b): As indicated in the report, only contractors on the Register of Suppliers can submit tenders, subject to compliance with a series of requisites regarding their aptitude, capacity, etc.
1.2.1. c):As far as non-personal services and supplies are concerned, that possibility is very restricted as the procurement process can only be prepared and started when the credits necessary for it have been authorized, which is once a year, so this is not known sufficiently in advance. Allprojects for public works must be planned in advance and the studies, designs and evaluations prepared.
Recommendations formulated in 1.2.2, 1.2.3.: TOCAF, Article 93 of the Accounting and Financial Administration text (Texto Ordenado de Contabilidad and Administración Financiera) states that: “Selective and subsequent procedures and audits by the Internal Auditing Bureau (Auditoría Interna de la Nación) shall cover budgetary, economic, financial, capital, legislative and management issues, and program and project evaluation. Notwithstanding the regular control technique foreseen in the generally accepted auditing standards, this appropriate legal, efficiency and efficacy criteria will be applied.”
1.2.4.The functions of the above-mentioned entities do not appear to overlap, since the Office of the Auditor General of the Nation carries out ex-ante control of proposedexpenditures to ascertain their legality, on its own behalf and on behalf of the Court of Accounts (Article 211 of the Constitution of the Republic), while the Office of the Internal Auditing Bureau carries out ex-post control.
In 1.2.5.: Internal Audits are already undertaken in some Ministries and the majority of Autonomous Entities and Decentralized Services.
In 1.2.6.: Electronic procurement of goods and services is already being implemented by the Central Administration through the: Information System on Government Procurement and Hiring (SICE). Compliance with the rules requiring that announcements be posted on the Internet is complemented by the Integrated Financial Information System (SIIF),because in the case of the Central Administration, in order to carry out each step in the expenditure process, the corresponding stage in the SICE must be carried out.
In 1.2.7: Regarding the measures suggested in 1.2.7. a): Article 3 of Law No. 16,112, of May 30, 1990 the functions of the Ministry of Housing, Land Planning and the Environment (Ministerio de Vivienda, Ordenamiento Territorial and Medio Ambiente) include: “6) The formulation, execution, supervision and evaluation of the national urban and territorial development plans and the implementation of national policy in this area”, “7) The formulation, execution, supervision and evaluation of national policy in this area”, and “8)Coordination with the other national or departmental bodies of the execution of their work.”It is important to note with regard to the measures suggested in 1.2.7 c), that public works must always be undertaken on public ground or in a public space, that the award is subject to issuance of a construction permit for the work tendered and that an environmental impact study is usually one of the documents that must be submitted with the bidding documents.
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Concerning the information required in Chapter One (1.b.) of the original report, the following statistical information was obtained from the National Civil Service Office after the report had been sent:
Total number of government positions held at December 31, 2005: 231,270
Estimated Number of government officials at December 31, 2005: 215,081
Period: March 1, 1985 - December 31, 2005Total Number of Government Positions Held
March 1985 / December 12, 2005 / Difference
262,508 / 231,270 / - 31,238
Estimated Number of Government Officials
March 1985 / December 31, 2005 / Difference
244,132 / 215,081 / - 29,051
EVOLUTION OF GOVERNMENT OFFICIALS IN URUGUAY
1900 –December 31, 2005
1900: 14,500 / 1930: 30,000 / 1941: 57,200 / 1969: 213,001 / 1985: 258,000
1990: 272,000 / 1999: 223,619 / 2000: 220,324 / 2001: 218,825 / 2002: 217,866
2003: 214,289 / 2004: 213,392 / DIC. 2005: 215,081
ESTIMATED NUMBER OF GOVERNMENT OFFICIALS
COMPARATIVE March 1, 1985 – December 31, 2005
AT March 1, 1985: 244,132 / 1993: 255,831 / AT Dec 31, 1998: 229,616
AT Dec 31, 1999: 223,619 / AT Dec 31, 2000: 220,324 / AT Dec 31, 2001: 218,825
AT Dec 31, 2002: 217,866 / AT Dec 31, 2003: 214,289 / AT Dec 31, 2004: 213,392
AT 31/12/2005: 215,081
TOTAL NUMBER OF GOVERNMENT POSITIONS HELD AT December 12, 2005
ENTITY / NUMBER
Legislative Branch / 1,483
Executive Branch / 89,235
Entities in Article 220 of the Constitutions / 74,749
Autonomous Entities and Decentralized Services / 29,679
Departmental Governments / 36,124
Total number of government positions held / 231,270
2. SYSTEMS FOR PROTECTING GOVERNMENT OFFICIALS AND PRIVATE CITIZENS WHO, IN GOOD FAITH, REPORT ACTS OF CORRUPTION (ARTICLE III (8) OF THE CONVENTION)
Recommendation 2.a): Article 4, Decree 209/00 of July 25, 2000 states that in the event of danger or risk, by order of the judge hearing the case, the identity of the complainant or witness may be preserved. It also provides for complaints to be filed anonymously and mechanisms to protect the identity of the person reporting the act of corruption. Article 4 of the Decree further stipulates that this provision is applicable in the event of danger or risk.
Recommendation 2.b): According to Article 43, Decree 30/2003 of January 23, 2003, Standards of Conduct in Public Functions, public officials who, in good faith, report acts of corruption, can enter the complainant and witness protection program: “Any person or government official who, in good faith, reports one of the crimes referred to in this Decree shall be covered by the witness protection program established under the legislation in force (Art. 36, Law 16,707 of July 12, 1995, Decree 209/2000 of July 25, 2000 and Art. III (8) of the Inter-American Convention against Corruption of March 29, 1996 ratified by Law 17,008)”. Hence the risk prevention mechanisms foreseen in Article 4, Decree 209 of July 25, 2000 apply to government officials who, in good faith, report persons who commit acts of corruption, including their superiors or work colleagues. The following ensures the job stability of these officials: a) the fact that, in the case of an anonymous report, their identity is not known; b) the standards that regulate the mechanisms for applying sanctions and dismissing government officials, which call for a prior administrative investigation whose resolution can be revised by the Administrative Justice Office (Administrative Court).
Recommendation 2.c): Please refer to previous reply.
Recommendation 2.d): There are bilateral and multilateral treaties on international cooperation and extradition that allow Uruguay and other States to cooperate when dealing with crimes involving corruption. Article 32 of Law No. 17,060 provides for extradition without a treaty which reduces the minimum penalty and authorizes extradition in cases involving corruption and reference is made to the laws of the requesting State. Article 33 to 36 of Law 17,060 contains intended to facilitate international cooperation on such crimes.
Recommendation 2.e): According to Decree 209/2000 and the Judicial Branch, the Ministry of the Interior is responsible for handling extradition requests.
N.B. The Uruguayan Executive has drafted a Bill of Police Actions. According to Chapter III, Title III of the Bill, provisions to protect victims, complainants and witnesses shall be legally binding. This will eliminate the problem that arises when these provisions are in rules that are not legally binding. The following rules would be legally binding:
ART.31 (Right to receive adequate protection)
Any victim, witness or person who provides specific information to the police shall be entitled to adequate protection from the appropriate government authorities, to the extent that this contributes to the prevention or clarification of illicit activities.
ART.32 (Recording and filing of information)
The police must keep records and files on all the information referred to in the previous article, and process and use it to prevent and investigate illicit activities.
ART.33 (Anonymous Information)
The police must record any information provided anonymously and recorded as such.
ART.34 (Confidentiality)
Any information or complaint by a victim, witness or person who provides specific information and whose identity is proven, shall remain on file and be treated as secret and confidential. It can only be revealed subject to an order from the appropriate justice authority.
ART.35 (Right to information)
The victim is entitled to be informed by the police about everything that transpires on the case affecting him, as long is this does not affect or obstructs the investigation, unless the appropriate justice authority rules otherwise.
ART.36 (Responsibility of police personnel)
The police personnel shall be responsible for taking whatever measures are necessary to protect victims, witnesses and persons who provide specific information.
3.ACTS OF CORRUPTION (ARTICLE VI.1 OF THE CONVENTION)
Recommendation 3.1.a):The inclusion of solicitation as a criminal offence as provided for in Article 157 of the Criminal Code can be considered to be covered by Article 156 of the Criminal Code (extortion)under inducement.. To induce is to incite or convince and contains a coercive component, in that a refusal might thwart someone’s promotion within the Administration. However, it is possible to differentiate between inducementwith its coercive component and mere solicitation, which might justify the amendment. Typically, any wrongful request by an official has a coercive component and can thus be considered extortion.
With reference to the incorporation of the text or any object of monetary value or other benefits such as gifts, favors or advantages, doctrine and jurisprudence have interpreted it with the full meaning of the term reward contained in the definition of the crime, and therefore the phrase whose inclusion is suggested would already be included in the definition. A reward can be in cash or in kind. According to BAYARDO BENGOA “Bribery can used to extort sexual favors from a woman, obtain a position or distinction, satisfy a desire for vengeance, etc.”[1].
Recommendation 3.1.b): A new definition of an offence could be included under Article 158 of the Criminal Code Criminal Code, worded as follows: expedite a procedure without going through the normal channels. This means acting contrary to the duties of the position and is therefore included in the definition of the offence as acting contrary to the duties thereof [2].
Regarding the inclusion of solicitingas a new class of offence and the addition of the the term reward in the phrase or any object of monetary value or any other benefits such as gifts, favors or advantages, we refer to the comments made when analyzing Recommendation 3.1.a. Even though Article 158 of the Criminal Code defines an illicit benefit as “money or some other advantage”, the term has the same broad meaning as reward does in Article 157[3].
Recommendation 3.2: In Article 159 of the Criminal Code inducement includes offering or giving an official an illicit benefit. According to the rules of criminal participation (Article 60 to 62 of the Criminal Code ) the offer can be direct or indirect. Reference made in Article 159 of the Criminal Code to Articles 157 and 158 thereof, determines that the action consists of offering an illicit reward in the sense given according to the clarification made upon analyzing Recommendation 3.1.a. This offence raises the mere instigation or offer to the category of an autonomous crime instead of penalizing attempting bribery in accordance with Article 5 of the Criminal Code .
Recommendation 3.3: Article 3 of the Criminal Code states that “failure to prevent something occurring when one is under the obligation to prevent it is equivalent to causing it to occur”. This clause has been interpreted by Uruguayan jurisprudence as a legal license to admit crimes of improper omission or commission by omission. Thus certain active crimes can be also be committed by omission if this rule is applied. Therefore the jurisprudential construction whereby action and omission are equivalent and the government official is considered a guarantor from a statutory point of view. Hence the crimes foreseen in Article 153 (embezzlement), 160 (fraud), 161 (confluence of personal and public interest), 162 (abuse of functions in cases not provided for by the law) and 163 bis (improper use of privileged information) of the Criminal Code can in many cases be attributed to omission by applying this clause.
Some types of omission, specifically defined as crimes, do not fall within the provisions of this Convention. Law No. 17,060 amends the crime provided for in Article 161 of the Criminal Code (confluence of personal and public interest) by including the crime of omission.
Article 164 of the Criminal Code also defines “Contemptuous omission to perform the duties of his office” as a crime: “A public official who commits an unjustifiable act or omission that is contrary to the duties of his office, shall be punished with three to eighteen months suspension.” This rule defines a government official’s omission to fulfill his duties as a crime. The fact that the definition does not specifically state that the reason for the omission is to obtain an illicit benefit for himself or a third party, does not mean that the penalty need not be applied. If the omission was in exchange for a benefit, it will be compounded by the generic aggravating circumstance established in Article 47 (2) of the Criminal Code: “Committed for a price, a reward or the promise of a recompense”.
Article 177 of the Criminal Code also contains a definition of omission with the punishment applicable to a government official who omits to report one of the crimes described in the rule, or who delays reporting it. As in the previous case, if the omission or delay was in exchange for a receiving an illicit benefit, it will be compounded by the aggravating circumstance foreseen in Article 47 (2) of the Criminal Code.
Recommendation 3.4:We feel that by including in Article 162 of the text in order to obtain illicit benefits for himself or for a third party the extent of the prohibition of crime is restricted, in that it excludes all cases of abuse by government officials that were not committed for that purpose. This provision was conceived as a subsidiary definition of the crime to cover abusive behaviors not covered by other types of specific definitions of crimes. The case of a government official who commits such a crime to obtain an illicit benefit for himself or for a third party is included in the rule and the motive is the reason why the crime is compounded by the aggravating circumstance foreseen in Article 47 (2) of the Criminal Code cited in the analysis of Recommendation 3.3. Article 163 ter of the Criminal Code, included in Law No. 17,060, provides for a special aggravating circumstance which applies to the crimes envisaged in Articles 153, 155, 156, 157, 158, 158 bis, 160, 161, 162, 163 and 163 bis of the Criminal Code . That aggravating circumstance consists of the following “The personal net worth of the participant in the crime increased as a result of any of these crimes”.
Recommendation 3.5: Article 30 de la Law No. 17,060 was annulled by Article 22 of Law No. 17,835. Article 8 of Law 17,835 states that “all the crimes included in Law Nº 17,060 of December 23, 1998” are classified as underlying money laundering crimes. Article 8 of Law No. 17,060 provided new wording for Article 157 of the Criminal Code establishing the “inclusion” in Law 17,060 of underlying money laundering crimes.
Recommendation 3.6: Any attempt to commit a crime is foreseen in a general clause in Article 5 of the Criminal Code: “Anyone who begins to commit a crime through external action but fails to complete it, for reasons beyond his control shall be punished”. Punishment for merely attempting to commit a crime can apply to all crimes, including those involving corruption, which because of their nature are not completed instantaneously..
Recommendation 3.7:Illicit association is a crime according under Article 150 of the Criminal Code. Crimes resulting from association may be any of the crimes under the country’s criminal legislation, including crimes involving corruption, thereby complying with Article VI.1 (e) of the Convention.
Recommendation 3.8: Article 175 of the Criminal Code includes elected officials and officials in the Executive Branch, whatever their hierarchy. When referring to a function of a legislative nature, this clearly includes those officials elected to national and local legislative bodies. Likewise, when referring to the provision of a function of a legislative, administrative or judicial nature, the intention is to include the three branches of power. Because there is no distinction between hierarchical levels, the definition includes all officials, regardless of their rank.
IV. OBSERVATIONS ON THE PROGRESS MADE IN IMPLEMENTING THE RECOMMENDATIONS FORMULATED IN THE REPORT OF THE FIRST ROUND
1. STANDARDS OF CONDUCT AND MECHANISMS FOR ENFORCING THEM (ARTICLE III, PARAGRAPHS 1 AND 2 OF THE CONVENTION)
1.1.1. Standards of conduct designed to prevent conflicts of interest and mechanisms for enforcing them
Recommendation 1.1 c):In the agreement entered into with the “Aquiles Lanza” Government officials School, in addition to the technical backing for the course on “State Ethics and Transparency”, two Seminars were planned for officials with management responsibilities on “The Debate and Legislation on Corruption”and are scheduled to take placethis year. The agenda is attached hereto.
1.2. Standards of conduct and mechanisms to ensure the proper conservation and use of resources entrusted to government officials
Recommendation 1.2.2: last paragraph (...the State under review should pay extra attention to the implementation of the recommendation)
We understand that the legislation in force on public tenders and in general on public hiring is reasonably well structured and that there are administrative and jurisdictional mechanisms in place to control these procedures which are fairly efficient and transparent. Though there is always room for improvement, at present it is not a critical issue from a legislative point of view.