23 August 2021 –
Argentina has made some progress towards developing normative legal frameworks for the implementation of articles of Chapter II (Preventive Measures) and Chapter V (Asset Recovery) provisions of the United Nations Convention against Corruption (UNCAC), but several challenges remain to effectively advance anti-corruption efforts, a new civil society report authored by Asociación Civil por la Igualdad y la Justicia (ACIJ) finds. ACIJ produced its report, which is intended as a contribution to the UNCAC implementation review process in its second cycle, with technical and financial support from the UNCAC Coalition.
One of the main findings of the report shows that the three main corruption prevention bodies in place in Argentina, the Anti-Corruption Office (OA), the Office of the Inspector General of the Nation (SIGEN) and the Office of the Auditor General of the Nation (AGN)lack functional and financial independence to effectively perform their duties. Similarly, there are several mechanisms for the participation of civil society in anti-corruption efforts in place, but they are often not made use of or are not taken seriously.
The official UNCAC review process in Argentina is currently at the self-assessment stage. Argentina signed the UNCAC Coalition’s Transparency Pledge in 2017. However, at the time of preparation of this report, the country had not yet complied with the principles of the Pledge. There is still time for the government to comply with the Pledge it committed to, by involving civil society in the review process, and by publishing both the self-assessment checklist, which ACIJ obtained through a freedom of information request, and full country report on Argentina’s UNODC country profile page once they are finalized.
The following are some of the main findings according to topic:
Public sector employment
While the legal framework provides for a hiring system governed by the principles of efficiency, transparency and equal access, in practice, there is an abuse of exceptional hiring without public competition, based on discretion and arbitrariness. Admission to public employment through open and competitive examinations is not common and the administrative profession is devoid of adequate promotion mechanisms and incentives for training. By the beginning of 2019, barely 5% of senior public management positions had been hired through an open competition. Also in the Judicial Branch, discretionary and opaque mechanisms for admission prevail and the holding of public competitions is an exception, except in the case of the Public Prosecutor’s and Defense Prosecutor’s Offices.
In practice, the financing of candidates for elective public office in Argentina has consistently lacked transparency, with a weak oversight system and ineffective preventive measures and sanctions. The legal regime was recently modified by Law No. 27.504 of 2019, which allowed for corporate contributions to political campaigns and established the obligation to document all donations as a measure to make financing transparent and to facilitate controls. However, there are indications that some concealment practices remain in force. There is also no adequate regulation to prevent conflicts of interest and undue influence from business contributions. Using state resources for electoral purposes by political parties in charge of the government is an established practice in Argentina.
Codes of conduct, conflicts of interest and asset declarations
The Public Ethics Law, passed in 1999, has proven to be ineffective. There are no independent bodies in place to oversee the law, which the Anti-Corruption Office is currently in charge of in the case of the National Executive Branch. The 2013 reform of parts of the Public Ethics Law provided for the obligation to publish the sworn asset declarations of public officials n open format online, but reduced the content and detail of the declared goods and assets, and concealed the statements of the spouses and minor children of the declaring persons. The latter was declared unconstitutional by the judiciary in 2018 after the civil society organization (CSO) Poder Ciudadano filed an appeal on the grounds of unconstitutionality, but the order has not yet been complied with. There are several legal reform projects presented in Congress, but they have not been discussed any further.
The procurement of goods, services and public works in Argentina is characterized by the limited availability of quality information accessible to citizens, and by the lack of mechanisms for citizen participation in all phases of the procurement cycle. Meanwhile, the widespread use of exceptions makes the rules for publicity and competition more flexible, increases arbitrary decisions and renders procurement more vulnerable to corruption. Argentine legislation has very vague limits in many cases of direct contracting, which makes this area subject to abuse, and corruption, a daily practice. The creation of online portals such as “Compr.Ar” or “Contr.Ar” can be highlighted as a good practice, as it has made more information on contracting available, though the publication of data in open formats is still scarce. However, the weaknesses of the procurement system worsened in the context of the COVID-19 pandemic, as emergency contracting was enabled with limited safeguards to mitigate corruption risks.
Access to information
The adoption of a law on access to information in 2016 was a step in the right direction, especially considering that data is to be published in open formats, but there are still significant challenges to its full implementation. Not all branches of government have functioning oversight bodies, with authorities appointed according to procedures that ensure their suitability and independence, and with guarantees against arbitrary removal. Of the four existing oversight bodies, only two of them have their own website and publish an annual accountability report and only one publishes some kind of information on the results of the audit of compliance with the obligations of active and passive transparency by the obligated subjects. Moreover, access to information and accountability of the judiciary in corruption investigations is extremely limited. Nevertheless, CSOs have on some occasions obtained judicial authorization to access corruption files as a form of citizen monitoring and based on the provisions of, among other norms, Article 13 of the UNCAC.
Participation of society
While the country has made significant progress in terms of access to information, institutional mechanisms for the participation of citizens in the cycle of planning, execution and monitoring of public policies are scarce, weak and infrequently used. The mechanisms of semi-direct democracy enshrined in the National Constitution were regulated in an excessively restrictive manner at the legal level, such that their use has been exceptional in the more than 25 years they have been in force. There is also no general law on citizen participation, unlike in other countries in the region. The mechanisms regulated by Decree 1172/2003 of the Executive Branch are of exceptional use in practice and have not been updated in almost 20 years of existence. For its part, the Ombudsman’s Office, the body in charge of communicating citizens’ demands to the State, has not been operational since 2009 and, therefore, is unable to perform its main functions. With regard to the prevention and criminalization of corruption specifically, there are still few channels for participation.
The creation of a Civil Society Advisory Council for the follow-up of the National Anticorruption Plan (now National Integrity Strategy) in 2019 and its implementation and expansion in 2020, institutionalized an area of participation of civil society (organizations, academia and private sector) in the Anti-Corruption Office for the first time.
The main agency for the prevention of money laundering, the Financial Information Unit (UIF), does not have adequate guarantees of independence to carry out its function impartially and effectively. The questioning of the suitability or independence of the persons appointed to head the UIF has been a constant in the institutional life of the agency. Although the candidates were called into question in the last three appointment processes, objections were dismissed by the Executive Branch in all cases. Furthermore, weak regulation of the obligation of public officials to disclose their assets hinders the prevention and investigation of the laundering of the proceeds of corruption. Argentina also does not have an adequate legal regime on beneficial ownership that would allow for the identification of the beneficial owners of companies or legal persons in all cases. Similarly, it is necessary to strengthen the sanctioning mechanism and to update the law to incorporate new subjects to the obligation to report to the UIF.
The way in which confiscation, non-conviction-based forfeiture, restitution and disposal of assets is regulated in Argentina presents numerous challenges that make it far from being an effective system for the fight against corruption and organized crime. In addition to overlapping regulations, a lack of transparency and the weakness of existing mechanisms, the current arbitrary use of such assets during the period in which they are in the hands of the judiciary are matters of great concern. A recent decree that established the procedural protocol for the civil action of forfeiture of ownership of assets is contradictory to certain constitutional guarantees and is therefore in urgent need of further discussions in Congress.
In its report, Asociación Civil por la Igualdad y la Justicia makes several key recommendations for priority actions to be taken to ensure the full implementation of the UNCAC in Argentina, for example:
On the review process and access to information
- Post information about the country review process, including the updated schedule and contact information for the focal point, on the Anti-Corruption Bureau’s website.
- Disseminate the self-assessment checklist on the Anti-corruption Office’s website.
- Organize briefings for civil society on the review process and on the status of progress in complying with the UNCAC.
On the application of the provisions of the UNCAC
- Provide the oversight bodies (OA, SIGEN, AGN, UIF, AAIP) with sufficient guarantees of autonomy and establish mechanisms for the appointment and removal of their heads to ensure their independence and aptitude.
- Strengthen external and internal monitoring systems, adapting legislation to international standards for the prevention and criminalization of corruption.
- Strengthen the public employment system, implementing a system of entry and promotion through open and competitive examinations.
- Improve the political party financing system to prevent conflicts of interest arising from business contributions, and increase the capacity of the monitoring system to prevent and investigate violations of the law.
- Enact a new Public Ethics Law that guarantees an adequate framework for integrity in the public sector, including the presentation, publicity and oversight of sworn asset declarations and the management of conflicts of interest.
- Update the legal framework for procurement and contracting of goods, services and public works, so as to ensure transparency, fair competition, efficiency and citizen control of all state procurement.
- Create and operationalize oversight bodies for access to public information in all branches of government, as required by the Access to Information Law.
- Establish effective institutional mechanisms for citizen participation in the public policy cycle in general, and in particular in the prevention, detection and punishment of corruption.
- Strengthen the FIU’s legal sanctioning framework, improve regulation on the accreditation of the identification of the beneficial owners of companies or legal entities that are clients of financial entities, and update the list of obligated reporting parties.
More specific recommendations are provided in Chapter VI of the report.Fullscreen Mode