THE FIGHT AGAINST CORRUPTION AT THE REGIONAL AND LOCAL (TAKEN BY THE STUDY PREPARED FOR MARINE TADEO Hainaut GTZ, DECEMBER 2006) "If lack of justice, which is the state but organized robbery?" - San Agustin *** "Undue political intervention of regional (and national) in the appointment, promotion or termination of insurance tax sets the stage for impunity " I. ESTABLISH AN INDEPENDENT ANTI-CORRUPTION BODY
accordance with Articles 5 and 6 of the Convention, the Colombian State as a State Party is obliged to "ensure the existence of a body independent authority to implement policies against corruption and promote good practice against it. "
corresponds to the independent body implementing policies:
"coordinated and effective anti-corruption policies that promote the participation of society and reflect the principles of rule of law, proper management of public affairs and public property, integrity, transparency and accountability. "
also corresponds to that body, as appropriate:
"the supervision and coordination of the implementation of those policies"
In the 2nd paragraph. Article 6 º. of The Convention stresses the obligation of each State Party to provide:
"the body or bodies mentioned in the 1st paragraph of this article the necessary independence, in accordance with the fundamental principles of its legal system so they can play their functions effectively and without any undue influence "
Although you can get a positive assessment of the progress and achievements of
Presidential Program of Modernization, Efficiency, Transparency and Combat Corruption
[1] , it as a dependency Administrative Department President of the Republic, headed by a free appointment and removal of the President of the Republic (now under the guidance of Vice President of the Republic), does not meet the fundamental condition of independence referred to the Convention.
The fulfillment of this obligation acquired by the Colombian government as part of the Convention is more relevant when considering the current context of investigations and allegations regarding the relationship of politicians, civil servants and armed groups operating outside the law. The creation of this independent body would also contribute to the international credibility of the efforts of the Colombian State in that direction. For the effect, not only have to create the appropriate body but, as envisaged by paragraph 2 of Article 6 of the Convention:
", should be provided material resources and personnel necessary and the training that such staff may require for the performance of their duties. "
II. ENSURING THE INDEPENDENCE, INTEGRITY, SECURITY AND STABILITY OF PROSECUTORS, JUDGES AND JUDGES scaling of corruption and state capture by paramilitary groups in alliance with politicians occurs at regional and local levels, but is associated with the widespread failure of national services, justice and security.
Prosecutors must advance criminal investigations and accusations act at regional level but are national staff belonging to the Administration of Justice. Undue political intervention of regional (and national) in the appointment, promotion or termination of insurance tax sets the stage for impunity. Therefore, as highlighted in the report GTZ-MTH:
"The career system in the Attorney General's Office, referred to the Constitution (art.253) and the Convention (arts.7 and 11 ), would strengthen the independence of this institution and to minimize the vulnerability of its officials. A system of selection, retention and promotion of staff of the Prosecutor based on "principles of efficiency, transparency and objective criteria such as merit, equity and aptitude" not only constitutes the best guarantee of effectiveness in the prosecution of corruption but generally required for effective human rights system that enshrines and protects the constitution and the treaties that form the block of constitutionality.
Moreover, it is necessary to protect the administration of justice (including prosecution) related pressures its budget, access to resources, downsizing, restructuring or reorganizations that create uncertainties or make it vulnerable to pressure (direct or indirect) of current or potential research subjects, or criminal prosecution.
III. ENSURE THE SAFETY OF JUDGES, PROSECUTORS, complainants, witnesses, expert witnesses and collaborators of justice - to make active risky OBSTRUCT (OR NOT COOPERATE WITH) THE JUSTICE Impunity is the result of a scenario in which there is low (or no) risk in the activity of criminals and their accomplices and accessories, while judges, prosecutors, complainants, witnesses, experts and collaborators of justice are exposed to risks from the loss of their jobs (and / or revenue) to the loss of life or integrity (physical or moral). Ending impunity that scenario requires investment risks become highly dangerous criminal activity not only directly but obstruction of justice (and non-cooperation with the law) and to create conditions of safety and security of judges, prosecutors, complainants , witnesses, expert witnesses and collaborators of justice
[2] . As highlighted in the report, already cited:
"The Convention (Art. 32) requires States parties to take appropriate measures to protect witnesses experts and victims of the offenses under the Convention against potential retaliation or intimidation. The standard includes provisions on physical protection of such persons, including relocation, to permit the total or partial disclosure of information concerning the identity and whereabouts, to establish evidentiary rules to permit testimony in safety, including testimony by communication technologies such as video or other appropriate means, and opportunity to be presented and considered the views and concerns of victims. "
The recent decisions of the Supreme Court of Justice are a milestone in the effort to reverse the risk scenario and end impunity. It is likely that criminals and their accomplices and accessories currently evaluating this scenario. Also, potential complainants and witnesses are wondering if now is the time to cooperate with the law or if, after their statements will be left to the action (retaliation) of criminals. The National Commission for Reparation and Reconciliation (NCRR) indicates that even at the time of updating this report, 140 of the victims of the paramilitaries have been intimidated
[3] .
In this context:
1. Assistance and intervention of international cooperation is essential to reinforce or strengthen efforts in this direction;
2. It is necessary to protect the evidence of crimes related to corruption, violation of human rights and crimes against humanity. This requires that the prosecutors have the most advanced technical and operational support, elite groups of forensic experts, media and forensic anthropologists, accountants, auditors, engineers and other professionals and access to bank information and the movement of assets in the country and abroad;
3. In the fight against corruption and state capture by powerful groups (armed and unarmed, legal and illegal domestic regional or local) is necessary to use the legal system has already generated a major collaboration of financial institutions to detect money laundering transactions related to drug trafficking. All financial institutions are required to have a Comprehensive Prevention of Money Laundering (SIPLA) and necessarily must report suspicious transactions to the Unit for Research and Financial Analysis (UIAF).
staff of financial institutions should receive specific training on the nature, characteristics, volume and frequency of transactions of political parties, political campaigns and public servants specifying the level of risk, type of product or services they provide, origin or destination of their operations and any other criteria for classifying these customers in the market range within which it fits. This segmentation would identify the common characteristics of transactions to detect unusual or suspicious transactions and report them to perform immediately. Upon
process information and training mentioned above, the Attorney General may consider opening a criminal investigation in cases where employees or directors of financial institutions or credit unions, fail to comply with the established control mechanisms.
IV. Criminalized trafficking INFLUENCES ON / BETWEEN INDIVIDUALS
In the process described in "State Capture" to regional and local level, not just those who are involved or get the status of "public servants" but is largely the result of negotiation between individuals. Therefore, the crime of "trafficking in influence" is essential, as is required in the art. 18 of the Convention, that the typical description, the active and passive subject of the action are undefined: "any person." This allows a very deep penalizing traffic influences: negotiation, outside the State, decisions and public resources. As highlighted in the report GTZ - MTH, for a procurement process can "negotiate" (or buy) the influence:
"directly with a local political boss, regional or national level without the direct involvement of employees will take appropriate decisions. Even the negotiation may consist precisely regardless of open and competitive process (competitive bidding, negotiations under way on the stock exchange, etc). In these cases, the staff (with the functions but without the power or independence necessary) but also participates in the commission of the crime, is actually a passive instrument to its protocol, in charge of decisions, the influence negotiated by those with real power to buy and sell public decisions. "
Unfortunately, on the contrary, in Colombia in the art. 411 of the New Penal Code, which defines only the traffic offense when a person influences the behavior is a "public servant" - was decriminalized conduct defined as a crime under art. Previous 147 of the Penal Code (Legislative Decree 100 of 1980) and anti-corruption statute (Act 190 of 1995, art. 25). Under these provisions was defined as a crime, unspecified active subject, the form of influence peddling that is sought or accepted improper benefits.
The mode that promise, offering or giving undue benefits to buy influence, real or perceived, in government or state authority, has not been defined as a crime under Colombian criminal legislation in force. The individual who attempts to buy undue influence over decisions or resources should not commit any crime. On the contrary, your transaction is specially protected: The crime of fraud (which protects the legal right of "economic assets" and is defined in Art. 246 Criminal Code), the minimum penalty tax for those who cheat (induce or maintained in error) using as a means of invoking such influences "real or simulated" will be twice the fool who apply by other means (Articles 247, item 3)
[4] V. REGIONAL AND LOCAL CAPACITY BUILDING TO COMBAT "cartelization" POLICY AND BUSINESS The above recommendations are specifically intended to prevent the "Agreements" (implicit or explicit) that allow the frame to the regional level corruption local, to include officials and institutions of control.
Without the independence of the prosecuting officers is unthinkable that they can start and stay ahead of criminal investigations for crimes directly related to corruption in procurement and management of public resources such as embezzlement, bribery (bribery), the malfeasance, extortion, undue conclusion of contracts trafficking in influence, illicit enrichment, abuse of authority, and crimes related to obstruction of justice, the assurance of impunity and the use of proceeds of corruption, such as money laundering, the front men, failure to control financial institutions and cooperatives, falsehood and crimes against the evidence.
Similarly, without the independence of officials of the Attorney and territorial comptrollers is unthinkable that they can anticipate the disciplinary faults incurred by officials who allow and / or benefiting from corruption and tax liability suits to protect public property.
However, the independence of officials from the Justice Department, the Attorney, the Comptroller (and of course, the judicial branch) is a necessary (indispensable) but not enough. Required to support capacity building (knowledge, skills) of these officials, civil society and private sector to prevent, investigate and promote the prosecution corruption in local and regional level. Also requires a framework of cooperation between them.
control agencies, civil society and the private sector requires an institutional and capacity development to "break the alliance" under the "cartelization" of politics and business
Although many of the failures can attributed to the legislation (and this is a fundamental aspect in the implementation of the Convention UNCAC), you can create regional and local level capacity and conditions for cooperation to combat corruption in departments and municipalities. The final part of this report highlights the fundamental aspects to be considered in the design and implementation of this strategy.
[1] Article 6 of Decree 519 of 2003 amending Article 10 of Decree 127 of 2001. The program was created by Decree 2405 of November 30, 1998
[2] The National Commission for Reparation and Reconciliation (NCRR) indicates that 140 of the victims of the paramilitaries have been intimidated.
[3] El Tiempo, March 23, 2007
[4] ARTICLE 247 - Aggravating Circumstances. The penalty prescribed in the preceding article shall be four (4) to eight (8) years when: (...) 3 .- invoke real or simulated influences on the pretext or in order to obtain a public benefit in case it is dealing or has to deal.
MORE IN THE STUDIO:
MARINO OTHER ELECTRONIC PUBLICATIONS RELATED Hainaut TADEO theme "
