mechanism for follow-up€¦ · web viewinstruments, devices, elements or tangible or intangible...

MECHANISM FOR FOLLOW-UP ON THE OEA/Ser.LIMPLEMENTATION OF THE INTER-AMERICAN SG/MESICIC/doc.193/07 rev. 1CONVENTION AGAINST CORRUPTION 11 June 2007Eleventh Meeting of the Committee of Experts Original: SpanishJune 25 - 30, 2007Washington, DC

VENEZUELA

REVISED VERSION OF THE DRAFT PRELIMINARY REPORT

COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW´-UP ON IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST

CORRUPTION

PRELIMINARY DRAFT REPORT ON IMPLEMENTATION IN THE BOLIVARIAN REPUBLIC OF VENEZUELA OF THE CONVENTION PROVISIONS SELECTED FOR

REVIEW IN THE SECOND ROUND, AND ON FOLLOW-UP TO THE RECOMMENDATIONS FORMULATED TO THAT COUNTRY IN THE FIRST

ROUND1

REVISED VERSIONAS PER 23(F) OF THE RULES OF PROCEDURE

Document prepared by the Technical Secretariat (Office of Legal Cooperation, Department of International Legal Affairs,

General Secretariat of the OAS)-May 2007-

NOTE BY THE SECRETARIAT #1:

1. The portions of this preliminary draft report on which the Bolivarian Republic of Venezuela has commented, including updated information provided by this country, as well as the comments by Colombia and Ecuador as members of the review subgroup, are contained in the notes by the Secretariat.

2. The text of the observations on spelling and form that does not substantially affect the content of this draft has been incorporated into this version.

INTRODUCTION

1. Contents of the Report

This Report presents, first, a review of implementation in the Bolivarian Republic of Venezuela of the provisions of the Inter-American Convention against Corruption selected for review by the Committee of Experts of the Follow-Up Mechanism (MESICIC) within the framework of the second round. The provisions are: Article III, paragraphs 5 and 8; and Article VI.

Second, the Report will examine follow-up to the implementation of the recommendations that were formulated to the Bolivarian Republic of Venezuela by the MESICIC Committee of Experts in the first round and included in the Report on that country adopted by the Committee at its Sixth meeting. The report can be seen at the following website: http://www.oas.org/juridico/spanish/mec_inf_ven.pdf

1 This preliminary draft report was drawn up pursuant to Articles 23(a), 27, and 29 of the Rules of Procedure and Other Provisions of the Committee (SG/MESICIC/doc.9/02 rev. 3), the Methodology for the Review of the Implementation of the Provisions of the Inter-American Convention Against Corruption Selected in the Second Round and for Follow-up on the Recommendations Formulated in the First Round (SG/MESICIC/doc.171/06 rev. 2), and the Format for the Country Reports that will be Prepared in the Framework of the Second Round (SG/MESICIC/doc.173/06 rev. 1), these last two documents adopted by the Committee, at its Ninth Meeting, held at OAS headquarters March 27 to 31, 2006.

http://www.oas.org/juridico/spanish/mec_inf_ven.pdf

2. Ratification of the Convention and adherence to the Mechanism

According to the official register of the OAS General Secretariat, the Bolivarian Republic of Venezuela ratified the Inter-American Convention against Corruption on May 22, 1997 and deposited the instrument of ratification on June 2, 1997.

The Bolivarian Republic of Venezuela signed the Declaration on the Mechanism for Follow-up on the Implementation of the Inter-American Convention against Corruption on June 4, 2001.

I. SUMMARY OF INFORMATION RECEIVED

1. Response of the Bolivarian Republic of Venezuela

The Committee wishes to acknowledge the cooperation that it received throughout the review process from the Bolivarian Republic of Venezuela, and in particular from the Office of the Comptroller General of the Republic, which was evidenced, inter alia, in the Response to the Questionnaire and in the constant willingness to clarify or complete its contents. Together with its Response, The Bolivarian Republic of Venezuela sent the provisions and documents it considered pertinent.

For its review, the Committee took into account the information provided by the Bolivarian Republic of Venezuela up to November 10, 2006 and the information requested by the Secretariat and the members of the review subgroup, to carry out its functions in accordance with the Rules of Procedure and Other Provisions.

2. Document submitted by civil society

The Committee also received documents from a civil society organization. However they failed to meet the requisites set forth in Article 34 of the Committee’s Rules of Procedure and other Provisions. Hence the requirements established in Article 36 regarding verbal presentation of the documents that could have been submitted in accordance with said Article 34 in the framework of the Committee’s meetings, were not met and neither were the requirements for their publication on MESICIC’s website complied with, in accordance with the provisions of Section X of the Methodology for review in the second round. (See appendix to this report).

II. REVIEW OF IMPLEMENTATION BY THE STATE PARTY OF THE CONVENTION PROVISIONS SELECTED FOR THE SECOND ROUND

1. SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION)

1.1. SYSTEMS OF GOVERNMENT HIRING

1.1.1. Existence of provisions in the legal framework and/or other measures

The Bolivarian Republic of Venezuela has a set of provisions related to the systems of government hiring, among which the following provisions related to the principal systems should be noted:

Constitutional provisions applicable to all public servants, among which the following should be noted:

2

NOTE BY THE SECRETARIAT #2: Ecuador suggests revising the following paragraph as indicated below.

The Bolivarian Republic of Venezuela formulates the following observation:

“In the following paragraph, the Ecuadorian Expert proposes the replacement of a word in Article 144 of the Constitution of the Bolivarian Republic of Venezuela. It should not be replaced because the text was copied from the Constitution which contains the term “by means of.” It is therefore suggested that the proposal be eliminated.”

- Article 144 of the Venezuelan Constitution provides that the law will establish the Civil Service Statute in which by means of norms on the entry, promotion, transfer, suspension and removal of public servants, as well as provision for their inclusion in the social security system. It further states that the law will determine the functions and requisites that public servants must fulfill in order to hold office.

- Article 145 of the Constitution provides, inter alia, that public officials are at the service of the state and not of any particular faction, and that their appointment or removal shall not be decided on the basis of their political affiliation or inclination.

- Article 146 of the Constitution states that public administration positions are career positions, with the exception of positions to which officials are popularly elected, freely appointed or removed, staff under contract, laborers in the service of public administration and any others determined by the law. This article also states that entry into career positions for public servants are conducted through a public competitive examination in order to determine their honesty, suitability and efficiency. It further provides that promotion shall be merit-based and determined according to scientific methods, and that transfer, suspension or removal from office shall be based on performance.

- Article 148 of the Constitution states that no-one may hold more than one remunerated public post simultaneously, with the exception of such academic, interim, welfare or teaching positions as may be determined by the law, and that if a public servant accepts a second appointment that is not excepted in that article, this will entail resignation from the first one. However, this rule does apply to alternates, as long as they do not replace the principal incumbent on a permanent basis.

Statutory and other legal provisions applicable to a majority of public servants, among which the following should be noted:

- Article 1 of the Civil Service Statute Law (LEFP) states that “This law shall govern the public employment relationship between public officials and national public administrations,” and provides its exclusions2.

Article 7 of the LEFP states that the entity responsible for planning the development of public functions in national public administration entities will be the Ministry of Planning and Development, whose attributions are defined in Article 8.2 Pursuant to Article 1 of the LEFP, the following public officials are excluded from application of this Law: civil servants who are: employed by the National Legislative Branch; covered by the Organic Law on the Foreign Service; employed by the Judiciary; employed by the Citizens’ branch of power; employed by the Electoral branch of power; laborers in the Public Administration; employed by the Office of the Attorney General; employed by the National Integrated Service of Customs and Tax Administration (SENIAT); and management, academic, teaching, administrative and research staff employed by State universities.

3

Article 8 of the LEFP provides that the Ministry of Planning and Development must assist the President of the Republic in carrying out the functions assigned under this Law, and must evaluate, approve and monitor the application of government policies through the approval of the staff plans implemented by government agencies and entities o the National Public Administration.

Article 16 of the LEFP provides that anyone is entitled to apply for a position in the Public Administration, subject only to the limitations stipulated under the country’s Constitution and legislation.

Article 17 of the LEFP defines the requirements that that must be complied with for candidates who apply for posts regulated by this3, while Article 19 states that civil servants employed in Public Administration positions will be career officials or officials who can be freely appointed to and removed from office. It further states that anyone who has passed the public competitive examination, completed the probation period, been appointed to office and is in remunerated employment on a permanent basis, shall be defined as a career official

Article 20 of the LEFP states that public officials who can be freely appointed to or removed from office may hold may hold high-level positions or positions of trust4, while Article 21 of the LEFP defines what is meant by positions of trust5.

With respect to incompatibilities, according to Articles 35 and 36, Chapter V, of the LEFP, public officials may not hold more than one remunerated position, with the exception of such academic, interim, welfare or teaching positions as determined by the law. The academic, interim, welfare and teaching positions which the law defines as compatible with the exercise of a remunerated public office may be held provided they do not affect the officials ability to comply with the duties inherent to that office.

Articles 37, 38 and 39, Chapter IV of the LEFP, regarding staff under contract, provide that they may only be employed under a contract in cases where highly-qualified staff is needed for a particular task and for a specific period of time. They may not be contracted to carry out functions corresponding to the positions found in that law. In regards to the system applicable to staff under contract, the LEFP establishes that it is found in the respective contract and labor law, and in no case may such a contract be used as a means of entry into the Public Administration.

3 Candidates must be Venezuelan; over eighteen years of age; hold a high-school certificate; not be banned or disqualified from occupying a public post; not be receiving a pension from a State entity, except in the case of high-ranking posts, in which case the pension must be suspended (exceptions to this rule are pensions received for the performance of compatible functions); fill the requirements for the post; comply with the entry procedures established in this Law and its Regulations, if applicable; and submit a sworn statement of assets. 4 Article 20 of the LEFP states that the following are considered high level positions: Executive Vice President; ministers; heads of national offices or their equivalent; presidential commissioners; Deputy Ministers; directors general, directors and other officials with similar ranks in the autonomous institutes; registrars and public notaries; the Secretary General of Government of the states; the sectoral directors general of the state governments, the directors of the municipal governments and other positions of equal rank; and the highest-ranking authorities of the state and municipal autonomous institutions, as well as their directors and officials of similar rank. 5 Public officials whose functions require a high degree of confidentiality in the offices of the highest-ranking authorities of the Public Administration, of the deputy ministers, directors general and directors or their equivalent, as well as positions whose functions consist mainly of activities related to national security, inspection and supervision, revenue, customs, border and alien control, without prejudice to the provisions of the law.

4

NOTE BY THE SECRETARIAT #3: Ecuador asks if there is any provision that regulates or determines how to qualify the attitude referred to in Article 40 of the Civil Service Statute Law (LEFP) transcribed below.The Bolivarian Republic of Venezuela formulates the following observation:

“In the following paragraph the Ecuadorian Expert asked if “there is any provision that regulates or determines how to qualify attitude.” Under Venezuelan legislation there is no specific provision that regulates or determines how to qualify attitude. However, Public Administration entities hold panel interviews, oral group interviews and personal interviews as means of gauging the attitude of a candidate who applies for a career position. These instruments allow interviewers to measure, for instance, the leadership capacity, initiative, spontaneity and teamwork ability of a candidate.”

Article 40 if the LEFP provides that the staff selection process is designed to guarantee the entry of applicants to career positions in the Public Administration, based on their skills, abilities and competencies, and they must sit public competitive examinations to enable people who meet the requisites for holding positions to participate on an equal footing without any kind of discrimination; and further, if public officials are appointed to the career service without having taken the respective competitive entrance examinations required under this Law, their appointments shall be declared null and void if they were made without such competitive examination being held in accordance with this Law.

Articles 41 and 42 of the LEFP indicate, respectively, that the human resources offices of the agencies and entities of the Public Administration must hold public competitive examinations for career public officials, and that the human resources offices of the Public Administration agencies and bodies shall keep registers of eligible candidates and give them ample publicity in accordance with the regulations to that Law.

NOTE BY THE SECRETARIAT #4: In relation to Article 45 of the Civil Service Statute Law (LEFP) below, Ecuador formulates the following question:

“Does the register of eligible candidates refer specifically to a particular career position or is it based on a register of eligible candidates in general. In other words, is a register of eligible candidates drawn up for a particular position or is there a general register of eligible candidates that is used for any career position?”

The Delegation of Venezuela answered as follows:

“In relation to the question formulated by the Ecuadorian Expert in the following paragraph, we report that to register on the list of eligible candidates, potential candidates must meet the requirements of the profile established in the Descriptive Job Manual. Thus, any candidate on the register must necessarily be qualified for the job.”

Article 45 of the LEFP states that vacancies for career positions must be filled from a list of eligible candidates for promotion in the respective entity; from the list of candidates eligible for promotion in the Public Administration; and from those in the registry of candidates eligible for entering public service.

Article 92 of the LEFP states that individual administrative actions filed by public officials under the terms of this Law exhaust administrative procedures. Therefore, the only recourse possible is the civil service administrative judicial review recourse which must be filed within the timeframe

5

stipulated in Article 94 of this Law6 following publication and notification thereof to the interested party, in accordance with the provisions of the Organic Law on Administrative Procedures.

NOTA DE LA SECRETARÍA#5: The Republic of Ecuador formulates the following question in relation to Article 93 of the Civil Service Statute Law (LEFP):

“Is there any other provision that allows for an internal – summary – proceeding before filing an appeal against the administrative decision?”

Venezuela answered as follows:

“In relation to the question posed by the Ecuadorian Expert in the following paragraph, the answer is affirmative. In this sense, Title IV, Chapter II, Article 85 and subsequent articles of the Administrative Procedures Law allows private to file the remedies referred to in that chapter against any administrative procedure that puts an end to a procedure, prevents it from continuing, prevents a proper defense or determines in advance that it is final, if such an act harms the subjective rights or legitimate personal and direct interests of the parties.”

Article 93 of the LEFP states that the appropriate civil service administrative judicial review tribunals must hear and rule on disputes that arise as a result of enforcement of this law, in particular in relation to complaints by public servants or candidates to the public service who feel that their rights have been harmed by acts or deeds committed by the agencies or entities of the Public Administration and requests for nullity of clauses in collective bargaining agreements.

- Article 21 of the Decree on the organization and operation of Central Public Administration (DOFAPC) of February 23, 2006, defines the competences of the Ministry of Planning and Development, the governing authority and entity responsible for planning and developing of the public service.

- Article 1 of the Organic Law on Administrative Procedures (LOPA), which states that the National Public Administration and the Decentralized Public Administration, in keeping with the organic law creating them, shall align their activities to comply with the provisions of the LOPA. State and Municipal administrations, the Office of the Comptroller General and the Office of the Public Prosecutor shall also conduct their activities in accordance with this law insofar as this is applicable.

Article 85 of the LOPA provides that interested parties may file an “Administrative Appeal” of the type referred to in Chapter II, against any administrative proceeding that puts an end to a proceeding, prevents it from continuing, prevents a proper defense or makes a final prejudgment, if such an act harms the subjective rights or legitimate, personal and direct interests of those parties.

Statutory and other legal provisions applicable to public servants in the National Legislative branch, among which the following should be noted:

6 Article 94 of the LEFP states that appeals brought under that Law shall only be admitted within three months from the date of the event that gave rise to them, or from the date at which the interested party was informed of the proceeding.

6

- Article 94 of the Rules of Procedure and Debates of the National Assembly (RIDAN) classifies National Assembly employees as: a) legislative career civil servants; b) public officials who can be freely appointed to or removed from office; c) employees under contract; and d) laborers.

NOTE BY THE SECRETARIAT #6: In relation to Article 95 below, Ecuador asks which group of people is classified as employees.

Venezuela replied as follows:

“All workers of the National Assembly who have not concluded the process to be considered as career officials, and those who are working during the trial period established in the Civil Service Statute of the National Assembly are classified as ‘employees.’”

- Article 95 states that the President of the Assembly shall appoint legislative career staff to the respective post from a list of candidates put forward by the human resources department. The article also provides that all positions in the National Assembly shall be legislative career positions, with the exception of civil service positions subject to free appointment and removal, staff under contract, laborers and any other employees determined by the law; that legislative career officials and employees in the National Assembly shall be subject to a Personnel Statute approved by the plenary Assembly which shall regulate all matters related to entry, promotion, transfer, suspension and removal from office; and that national legislation on the public service shall be applied to any matters not foreseen by the Statute.

NOTE BY THE SECRETARIAT #7: In relation to the Civil Service Statute of the National Assembly (EFAN) below, Ecuador formulates the following observation and asks the following question:

“By virtue of the second transitory provision of the Civil Service Statute of the National Assembly (EFAN), it would be appropriate to determine the date on which the Civil Service Statute of the National Assembly was approved which, in Article 1, provides that it will establish the rights and obligations under the civil service relationship between the National Assembly and the public officials in its service; and will regulate matters concerning access, transfer, suspension, removal, reclassification, training and preparation. What is the difference between training and preparation?”


“The Civil Service Statute of the National Assembly came into effect on December 26, 2002, when it was published in Official Gazette Nº 36,598. It should be noted that this Statute was attached to our response to the Questionnaire and is posted on the follow-up mechanism’s website.

“The term “training” refers to the process through which human resources who received an intellectual training are prepared, i.e. professionals and technicians; while the term ”preparation” is employed for workers or laborers who have not received any academic preparation.”

- Article 1 of the Civil Service Statute of the National Assembly (EFAN) provides that it will establish the rights and obligations derived from the civil service relationship between the National Assembly and the officials in its service, shall regulate matters concerning entry, transfer, suspension, removal, reclassification, training, preparation, system of stability and system of remunerations, as well as all matters regarding the administration of public service in

7

the National Parliament; and that any matters not foreseen in the Statute shall regulated by the provisions of the Civil Service Statute Law and its regulations. Article 1 also states that the internal regulations, instructions and other regulatory instruments passed by the appropriate bodies of the National Assembly shall also be complementary, provided that they do not contradict the terms of the Statute.

Article 2 of the EFAN establishes that the officials of the National Assembly may be career civil servants or public officials who can be freely appointed or removed from office; and specifies that they must be legislative career officials who have passed public competitive examination, completed a probationary period and, having been appointed by the appropriate authority, became permanent salaried employees of the National Assembly. It also defines as public officials who are freely appointed or removed as those who have been appointed by the appropriate authority to a high-level post or a position of trust and can be freely removed from office under the terms of the Statute.

Article 4 of the EFAN exempts from application of the Statute, laborers who are employed by the National Assembly. Those laborers shall be governed by their own collective bargaining agreement and the Organic Labor Law and its Regulations, and staff under contract shall be governed by the terms of their respective contract, supplemented by the terms of the Organic Labor Law and its Regulations.

NOTE BY THE SECRETARIAT #8: Ecuador asks if the EFAN stipulates a maximum duration for the staff contracts referred to in Article 6 of the Statute.


“Even though the EFAN does not establish a maximum duration for contracts, since these are designed to meet a specific need, other than the needs for services that are covered by career positions, the duration will be sufficient to satisfy the need that gave rise to the contract and it is specified in the contract. It may not exceed the fiscal year that starts on January 1 of each year and ends on December 31, as this would commit budgetary funds for future years without there being any available budget, which would incur administrative accountability under the provisions of Article 91 (12) of the National System for Fiscal Control (LOCGRSNCF).”

Article 6 of the EFAN states that staff under contract shall only be used if skilled staff are required to undertake specific tasks for a specific period of time, and that in no case shall a staff contract be considered a means of access to a civil service position in the National Parliament. It adds that any contract to hire staff that infringes the terms of the Statute shall be declared without effect.

Article 11 of the EFAN states that the President of the National Assembly shall approve the standards governing public competitive examinations proposed by the Human Resources Directorate, and that when an examination is scheduled, it must be advertised in order to give all potential candidates a free and equal opportunity to apply.

Article 14 of the EFAN provides that officials can only be employed in a legislative career position in the National Assembly if a new position is created or a vacancy occurs, and their respective emoluments are foreseen in the corresponding budget.

8

Article 15 of the EFAN stipulates the requisites for holding the positions regulated by this Statute7.

Article 18 of the EFAN provides that each candidate’s file with his/her background, the result of the tests, interviews, pre-employment examinations, opinions of the Heads of Unit and recommendation of the Human Resources Directorate, shall be submitted by the Directorate to the President of the National Assembly, while Article 20 states that it is the President of the National Assembly that appoints staff entry into the legislative career service.

Article 96 of the EFAN states that individual administrative procedures filed by public officials in the legislative career service, under the terms of this Statute, are the last recourse to administrative action. Therefore, the only recourse possible is the civil service administrative review recourse contained in Title VIII of the Civil Service Statute Law.

Article 97 of the EFAN that the appropriate civil service administrative judicial review tribunals must hear and rule on all disputes that arise as a result of enforcement of this Statute , including complaints filed by civil servants of the legislative career service or candidates for entry into the National Assembly who feel that their rights have been harmed by acts or deeds committed by Departments, Directorates or Dependencies of the National Assembly.

Transitory Provision II of the EFAN states that people who joined the civil service on or after January 2, 2000 and up to ninety days after this Statute came into effect, must take a public competitive examination according to the terms stipulated in Title II, Chapter II of the Statute, except for the probationary period. Those incumbents will be given priority to apply for the position they presently hold and their time in the position and the service record will be taken into account.

Statutory and other legal provisions applicable to public servants of the Judicial branch, among which the following should be noted:

- Article 255 of the Constitution states that access to the career service in the judiciary and promotion of judges shall be subject to a public competitive examination in order to ensure the suitability and excellence of participants and they will be selected by a panel of judges of the judicial circuits, in the form and the conditions established by the Law, which will guarantee citizen participation in the procedure to select and appoint judges.

- Article 6, paragraphs 6, 7 and 14 of the Organic Law of the Supreme Court of Justice (LOTSJ), states that the duties of the Supreme Court of Justice include appointing and swearing in the judges of the Republic; appointing and swearing in officials and employees of the Judicial branch, in accordance with the law and; appointing and removing secretaries, officers of the court and other officials and court employees or delegating to its president the power to appoint and remove them.

Article 13 of the LOTSJ states that the Judicial Nominations Committee is an advisory body of the Judicial branch on the selection of candidates as Supreme Court justices, and establishes guidelines on the manner the process should take place. Also, it states that the Committee shall advise the Electoral Judicial Colleges in the election of judges with disciplinary jurisdiction.7 Candidates must be Venezuelan; of legal age; comply with the requisites for holding the position; not be banned or disqualified from occupying a public post, not be receiving a pension from a State entity, except in the case of high-ranking posts, in which case the pension must be suspended for as long as the position is held; and any other requisites established in the laws, regulations and internal instructions of the National Assembly

9

Article 14 of the LOTSJ states that the process for pre-selecting candidates shall be public and that once candidates have been nominated, the Judicial Nominations Committee must publish the names of the candidates in a major national newspaper the following working day, specifically indicating that those interested may, upon presentation of reliable proof, file an objection within fifteen (15) days to the appointment of one or more of the candidates, as of the date of publication of the list.

- Article 85 of the Organic Law of the Judiciary (LOPJ) states that the forensic physicians and other employees may be freely appointed and removed by the National Executive. The former shall be sworn in before a superior court or a criminal court of first instance appointed by it, and the second before the respective forensic surgeon.

- Article 1 of the Judicial Career Law (LCJ) states that its purpose is to guarantee the suitability, stability and independence of judges and regulate the conditions for their entry, permanency and termination; as well as determine disciplinary responsibility of judges when exercising their functions.

Article 4 of the LCJ provides that the judges of ordinary jurisdiction and special jurisdiction will enjoy the benefits of the Judicial Career Service; and that the Counselors of the Judiciary Council and the Magistrates of the Administrative Judicial Review Courts shall only enjoy the social security benefits of the Judicial Career Service. The same rule exempts the Magistrates of the Supreme Court of Justice and Military Judges from its application.

NOTE BY THE SECRETARIAT #9: In relation to the neuropsychiatric evaluation referred to in Article 10 below, Ecuador asks if this evaluation applies to all positions.

Venezuela replies:

“According to Article 10 and 11 of the Judicial Careers Law, in order to enter the judiciary career must obtain an excellent score in the competitive examination and be declared capable in a neuron-psychiatric evaluation. This access is in accordance with category “C” in the judicial hierarchy. However, anyone who enters categories A and B in the judiciary career must also be declared capable in the evaluation.”

Article 10 provides that any candidate wishing to enter the Judicial Career Service must obtain an excellent score in the competitive examination and be declared capable in a neuropsychiatric evaluation. In order to take the examination, a candidate must be Venezuelan, an attorney, of unquestionable conduct, over twenty-five years of age; free to exercise their civil and political rights; present proof of having practiced law for at least three years, or have a postgraduate diploma or degree in law.

Article 20 states that in order to fill existing vacancies and any that may be created pursuant to the law, the following order of priority will prevail: Judges of Judicial Districts that are different from but in the same category as the one to be filled and who apply for a transfer to the district and fill the requisites established in this Law for transfers; in the absence of the foregoing, Judges of the same district or region who have served in the category immediately below the position that is to be filled, and who meet the conditions established in this Law for promotions; the alternates of the incumbent who is to be replaced, appointed pursuant to the provisions of Article 22. When more than one of the Judges has priority as per this Article, the Judiciary Council will initiate a competitive process so that the interested judges can compete for the post.

10

Article 21 of the LCJ provides that the Judiciary Council shall organize and manage, in accordance with the regulations issued to that effect, the competitive examinations referred to in the Law; while Article 22 defines the composition of the panel of judges of the competitive examinations for the different categories.

Article 23 of the LCJ states that competitions will be public and must announced in a major regional newspaper at least ten days before the date they are to be held, indicating the day, time and place they will take place. They will consist of three tests: one of credentials and merits; a written practical test and a theoretical oral examination. Article 24 also provides that if a competition is declared void, the Judiciary Council will convene a second competitive examination and if this too is declared void, the Council may proceed to fill the position with an interim Judge who meets the conditions stipulated in Article 10 until such time as the appointment can be filled through a competitive examination, which will be convened within a period of no more than six months, notwithstanding the provisions of Article 20 insofar as it is applicable.

Transitory Article 52 provides that Rapporteurs, Officials and Clerks of the court and other employees of the ordinary and special courts, with the exception of the military, shall be governed by the Judicial Personnel Statute issued by the Judiciary Council.

Transitory Article 53 states that until such time as the Law regulating the institution of public defense is passed, the public defenders shall enjoy the same benefits and guarantees agreed upon in this Law for Judges; insofar as they are not incompatible with their functions8.

- Article 4 of the Rules on Evaluation and Competitive Examinations for Entry to the Judicial Career Service (NECOICJ) states that entry is only possible through a public competitive examination, based on principles of honesty, suitability and efficiency. The competitive examination includes passing the tests of the Initial Training Programs, a medical and psychological evaluation and a knowledge examination.

Article 5 of the NECOICJ states that the Supreme Court of Justice, through the National Magistrate’s School, shall announce public competitions in two major national newspapers, one regional newspaper, when applicable, and on the website of the Supreme Court of Justice, in order to ensure that they are well advertised. This announcement will indicate the requirements and deadlines for registration, the category or categories and districts, the number of positions that can be applied for, the programs and any other information deemed relevant.

Article 7 of the NECOICJ establishes the necessary requisites for entry in to the judicial carrer service9, while Article 8 refers to incompatibilities for performing the functions of a judge, which

8 The Committee notes that the Bolivarian Republic of Venezuela presented the new Public Defense Organic Law published in Official Gazette Nº 38,595, after the deadline for submitting the response to the questionnaire, due to the fact that it came into effect on January 2, 2007. This is why this rule was not reviewed.9 Venezuelan nationality; law degree from a Venezuelan university, or from a foreign university and revalidated so that the candidate can practice law in Venezuela; registered both in the respective bar association and in the attorney’s social welfare institute, and presentation of the respective solvency; having graduated at least three years before and with working experience in the profession; ability to exercise his/her civil and political rights; unquestionable behavior and recognized morals; commitment to abstain from involvement in political, party-political or union activism in public service; authorize a periodical investigation of his/her assets; submit a tax return for the previous fiscal year; submit the last sworn statement of assets, in the event of having previously held a public office; be skilled in the way the media function; have been declared capable in the medical and psychological assessment; and pass the public

11

include, in particular, being in active military service, a minister of any cult or religion, leader of a political party, having a criminal record or having been condemned by courts or professional disciplinary bodies that compromise his/her behavior. Neither can they be judges in the same judicial district with other judges who are related through direct sanguinity, spouses, or related collaterally within the third degree by consanguinity (related by blood) and within the second degree by affinity (related by marriage), both inclusive. These same circumstances apply to people who are related through adoption.

Article 29 of the NECOICJ establishes the composition of the Panel of Judges, and states that the panel for each competition shall be made up of three (3) principal members and three (3) alternates, selected at random and the examination to ascertain their knowledge shall be announced at least ten (10) days in advance. The members of the panel may not be spouses nor may they be related within the fourth degree by consanguinity or within the second degree by affinity, nor can they be in any way related to the participants.

Article 35 provides that the score given by the panel cannot be changed by any authority, unless it is determined, pursuant to an official letter or request of one of the parties, that a procedural defect affected the validity of the scoring, or that due to proven material errors and subject to authorization by a full bench of the Supreme Court of Justice. In such cases, any candidate who does not agree with the score has five (5) days from receipt of the result to request that it be reviewed. The panel must show the candidate the evaluation of the examination and explain the criteria used to grade it in order to guarantee the educational purpose of the activity and the impartiality of the evaluation. The provisions of this article shall also apply to the evaluation of credentials. This Article adds that the panel’s decision is the last administrative recourse and it can only be challenged by filing an application for annulment of an administrative decision with the Political-Administrative Court of the Supreme Court of Justice within the term provided for in the Organic Law with regard to its functions.

Statutory and other legal provisions applicable to public servants that make up the Citizens Branch of Power in oversight bodies, among which the following should be noted:

NOTE BY THE SECRETARIAT #10: Venezuela suggests that the term “oversight body” should be replaced by “bodies of the Citizens Branch of Power.”

The Secretariat wishes to clarify that the term “oversight bodies” has been the standard term used for all the states reviewed.

If the Bolivarian Republic of Venezuela’s, proposal is adopted, the text of the sub-paragraph would read as above.

- Article 13 of the Organic Law of the Office of the Public Prosecutor (LOMP) states that the Attorney General of the Republic shall determine in the Personnel Statute of the Office of the Public Prosecutor, the positions to be filled by officials who can be freely appointed or removed from office, by reason of the level or nature of their functions.

Article 21 of the LOMP provides that the Attorney General of the Republic must appoint prosecutors of the Office of the Public Prosecutor as well as its other employees, in accordance

competitive examination.

12

with the procedure established in this Law and by internal regulations; and will also issue the internal regulations of the Office of the Public Prosecutor.

Article 22 of the la LOMP states that in order to carry out better the functions of the Office of the Public Prosecutor the Attorney General of the Republic may employ professionals, technical staff or experts in specific areas, under the terms and conditions set forth in the corresponding contract, in which case the provisions of this Law shall not apply to those people.

Article 79 of the LOMP creates the Career in the Public Prosecutions Service which shall be governed by the provisions of the Personnel Statute issued by the Attorney General of the Republic. This article also states that candidates who wish to enter the public prosecutions service must pass the competitive examination with an excellent score, of which a minimum of seventy-five percent (75%) must be obtained.

- Article 1 of the Personnel Statute of the Office of the Public Prosecutor (EPMP), states that the Statute will govern all aspects related to regulations governing labor issues insofar as they apply to prosecutors, attorneys for minors, officials and employees of the Office of the Public Prosecutor, with the exception of laborers in the service of the Office of the Public Prosecutor, who are governed by the provisions stipulated in the corresponding collective bargaining agreement.

Article 2 of the EPMP states that officials and employees of the Office of the Public Prosecutor may be career officials or officials who can be freely appointed and removed from office by the Attorney General.

Article 3 provides that anyone who enters the service of the Office of the Public Prosecutor, through an appointment, satisfactorily completes the probationary period established in Article 8 and is employed on a permanent basis, shall be considered a career official or employee. This article also states that a position shall be considered as subject to free appointment or removal when determined as such in the appointment of an official or employee or if so determined by a resolution issued by the Attorney General. The following are some of the positions subject to free appointment or removal and are exempted from the application of the career service system: the Directors of Office of the Attorney General, Deputy-Directors, Coordinators, Division Heads, Departmental Heads, Unit Heads, Auditors, Registrars of Goods and Materials, Warehouse Managers, General Service Supervisors, Internal Services Managers, Buildings Supervisors, Telecommunications Technicians, Copy Supervisors, Copy Machine Operators, Media Professionals, officials and employees who work in the Coordination Area and Secretariat of the Office of the Attorney General, Assistants and Deputy Directors of the Office, as well as officials and employees who provide security services to the Attorney General and the dependencies of the Office of the Public Prosecutor.

Article 7 of the EPMP provides that in order to work for the Office of the Public Prosecutor, it is required, where applicable, to have passed the evaluations that ascertain the skill, aptitude and knowledge required for the post. This Article also indicates that if the Attorney General deems this to be pertinent, professional positions may be filled subject to an evaluation of credentials or competitive examination for which rules will be drawn up. Appointments to the position of Senior Prosecutor and Prosecutor of the Office of the Public Prosecutor and Attorneys for Minors must first pass a competitive examination in keeping with regulations contained in the Organic Law of the Office of the Public Prosecutor and this Statute.

- Article 23, which refers to the evaluation panel of the competitive examinations, states that the panel’s decisions shall be made by majority vote and, in the case of tests to determine the

13

candidates knowledge of the law, the final grade will be calculated by averaging the scores assigned by each panel for each test. These decisions may not be appealed and the panel’s deliberations will take place in private and be recorded in a report.

- Article 10 of the Organic Law of the Office of the Comptroller General of the Republic and the National System for Fiscal Control (LOCGRSNCF) states that the Office of the Comptroller General shall act under the guidance and responsibility of the Comptroller General.

Article 19 of the LOCGRSNCF states that the administration of the staff employed in the Office of the Comptroller General shall be governed by this Law, by the Personnel Statute and by the other rules issued by the Comptroller General on the matter.

- Article 1 of the Personnel Statute of the Office of the Comptroller General of the Republic (EPCGR) states that the Comptroller General shall have competency over the public service and the management and development of Human Resources of the Office of the Comptroller General of the Republic who, through special internal regulations, will complement and develop the provisions of this Statute and approve the necessary manuals and rules of procedure.

Article 2 of the EPCGR provides that officials in the service of the Office of the Comptroller General may be career officials and freely appointed and removed officials, while Article 3 states that anyone who enters the service of that office by appointment, satisfactorily completes the probationary period established in Article 12 of this Statute and is employed on a permanent basis, shall be a career official.

Article 4 of the EPCGR indicates that the positions in the Office of the Comptroller General are career positions, except for those subject to free appointment and removal; and that high level positions and positions of trust are considered positions subject to free appointment and removal, of which the following are listed:

o High-level posts: Director General; Sectoral Director; Supervisory Analyst; Consultant Analyst; Assistant Consultant Analyst; Associate Consultant Analyst; General Consultant Analyst; Supervisory Attorney; Consultant Attorney; Assistant Consultant Attorney; Associate Consultant Attorney; General Consultant Attorney; Auditor General; Consultant Auditor; Assistant Consultant Auditor, Associate Consultant Auditor; General Consultant Auditor; Supervisory Administrator; Consultant Administrator; Assistant Consultant Administrator; Associate Consultant Administrator; and General Consultant Administrator.

o Positions of trust: Coordinating Analyst; Senior Analyst; Junior Analyst; Assistant; Coordinating Attorney; Senior Attorney; Junior Attorney; Coordinating Auditor; Senior Auditor; Junior Auditor; Audit Assistant; Coordinating Researcher; Senior Researcher; Research Assistant; Coordinating Administrator; Senior Administrator; Junior Administrator; Documentalist Coordinator; Pre-school Director; Teaching Coordinator; Educational Psychologist; Supervisory Communicator; Coordinating Communicator; Laboratory Technician; Dentist; Nutritionist; Coordinator; Security I; Security II; Security III; and Security Supervisor; and positions whose incumbents come under the Office of the Comptroller and the Office of the Deputy Comptroller.

NOTE BY THE SECRETARIAT #11: Ecuador formulates the following question: “Is there a definition of the meaning of high-level position or position of trust?”

14

Venezuela replies:

“Even though the Personnel Statute of the Comptrollership General of the Republic (EPCGR) does not expressly define what is mean by high level position and position of trust, Article 19 of the Civil Service State Law does; it defines such positions as offices subject to free appointment and removal to and removed from office, subject only to the limitations stipulated in this Law. High-level positions are management positions within the institution and positions of trust are called such by virtue of the type of activities assigned.”

Article 5 of the EPCGR provides that the Human Resources Directorate will be responsible for the management and development of staff employed in the Office of the Comptroller General; that the Human Resources Director must have technical training in personnel management and development and may not be related to the Comptroller General within the fourth degree of consanguinity and second of affinity.

Article 6 of the EPCGR states that the Human Resources Directorate shall fulfill the functions assigned to him in the Internal Regulations of the Office of the Comptroller General and the corresponding Organizational Resolution.

Article 7 of the EPCGR defines the following necessary requirements in order to be employed by the Office of the Comptroller General: be Venezuelan; have good behavior; fill the requirements for the position; not be banned from exercising his/her civil rights; and any others provided for in the Constitution, laws and regulations, as well as the rules and procedures issued by the Comptroller General.

Article 8 of the EPCGR states that entry into the Office of the Comptroller General is carried out through a competitive examination. Successful candidates are chosen based on merit and are evaluated equally in a manner that ensures objectivity. For selection purposes, the Human Resources Directorate must keep a Register of Eligible Candidates in accordance with the rules applicable to such processes.

Article 10 provides that the Comptroller will appoint officials to career positions or those that are subject to free appointment and removal.

- Article 1 of the Internal Regulation of the Office of the Comptroller General of the Republic (RICGR) state that both it and the Organizational Resolutions that complement it, establish standards related to the structure, organization and operation of the bodies of the Office of the Comptroller General, the distribution of functions and the assignment of competencies.

1.1.2 Adequacy of the legal framework and/or other measures

With respect to the constitutional and legal provisions that refer to the principal systems of government hiring in the Bolivarian Republic of Venezuela that the Committee has examined, based on the information available to it, they constitute a set of measures relevant to promoting the purposes of the Convention

Notwithstanding, the Committee considers it appropriate to make a number of observations on the advisability of complementing, developing and amending certain legal provisions that refer to those systems.

With respect to the system for hiring public servants under the central system, the Committee considers the following:

15

NOTE BY THE SECRETARIAT #12: The Bolivarian Republic of Venezuela formulates the following observation:

“With regard to the Secretariat’s statements, expressed in the following paragraph, in relation to the fact that “there does not appear to be a regulated subsystem governing the recruitment of civil servants that defines the parameters and guidelines of such competitive examinations,” we observe that Articles 131 to 141 of the regulations on the Administrative Careers Law, which shall remain in effect unless it contradicts the provisions of the Civil Service Statute Law (LEFP), provide, are applicable to such competitive examinations, and read as follows:

Article 121. A competition shall be based on the judgment of the merits of the competing candidates for a position, on an equal footing to ensure objectivity. Article 122. The Central Personnel Office shall plan and coordinate with the public bodies competitions to recruit and select the staff required to hold vacancies in the National Public Administration. Article 123. The Personnel Offices shall hold competitions and to that effect will publish the invitations in one of the major local newspapers, without affecting the right of other media to announce them as well. Article 124. The invitation must state: 1. The job category. 2. Minimum requisites in terms of education and experience. 3. Starting salary. 4. Documents to be submitted. 5. Date, time and place of presentation of candidates. 6. Proper method and deadline for notification. Article 125. The examination consists of a series of tests to determine the candidate’s suitability for the position. Article 126. Test shall mean any of the components of an examination whose purpose is to assess the knowledge, aptitudes, abilities, skills and personal characteristics of the candidates, in order to obtain precise and objective information that allows the candidate’s performance in the position to be predicted. Article 127. The Central Personnel Office will design and develop t\tests to evaluate in each Series and Category of Position, with the advice of he the Central Personnel Office. Article 128. Candidates shall be informed of the results within ten working days after the conclusion of the competition. Article 129. Candidates may ask the Personnel Office to review the results of the competition within five working days after hearing the results. Article 130. Candidates who fail the exam may ask to take other exams after the pre-established time for each Category of Position. Article 131. Any false information provided by the candidate regarding the essential requisites for the position shall be grounds for exclusion from the competition or for the annulment of the appointment. It is therefore suggested that the following paragraph and the recommendation arising therefrom be eliminated.”

In that regard the Secretariat wishes to point out that this report was drafted using the information receive up to November 10, 2006. The regulations to the Administrative Careers Law were not included in the information remitted by the State under review and the Secretariat General did not have this provision at its disposal. The Delegation of Venezuela cites as pertinent articles Articles 131 to 141 of the Law, but lists Articles 121 to 131. We believe that there may be a typing mistake and the numbering should therefore be checked.

16

If the proposal by the Bolivarian Republic of Venezuela is accepted, the text crossed out below would be eliminated.

First, the Committee notes that although Article 19 of the Civil Service Statute Law (LEFP) defines as a career civil servant as someone who has won the public competitive examination, completed the probationary period, been appointed to office and holds a remunerated permanent position, there are no regulations for the subsystem on the recruitment of civil servants to the Civil Service that defines the parameters and guidelines to carry out these competitive examinations. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.1 (a) of this Report).


“With regard to the Secretariat’s statements in the following paragraph, we must point out that there are personnel plans under the terms indicated in Article 8 of the Civil Service Statute Law (LEFP), under which the budget is drawn up on an annual basis. However, it was not considered relevant to include it in the response to the Questionnaire, due to the large amount of information and its irrelevance in relation to the demands of the Questionnaire. It was therefore suggested that the paragraph and the corresponding recommendation be eliminated.”

If Venezuela’s proposal is accepted the text struck through below would be eliminated.

Secondly, the Committee notes that although pursuant Article 8 of the LEFP, the Ministry of Planning and Development is responsible for evaluating, approving and controlling the application of civil service policies through the approval of the staff plans implemented by the agencies and entities of the National Public Administration, there appear to be no guidelines or rules on how such personnel plans should be developed, nor is there any information on whether they were in fact developed. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.1 (b) of this Report).

NOTE BY THE SECRETARIAT #14: Colombia requests the inclusion of the text underlined below in this section:

“Third, the Committee finds that neither is there any oversight body or mechanism in charge of organizing and developing the public competitive examinations that must be held by the human resources offices of the Public Administration agencies and entities. Within this framework it will formulate a recommendation in this regard. (recommendation for page 60 of this Report).”

At the request of the Republic of Colombia, the term “fourth” would replace “third” in the following paragraph, as shown below.

Venezuela formulates the following observation on this matter:

17

“In relation to the following paragraph, included by the Colombian delegation, we observe that in the Bolivarian Republic of Venezuela, there is a body in charge of the oversight of the organization and development of the public competitive examinations that must be held by the human resources offices of the Public Administration agencies and entities. According to the terms of Articles 7 and 8 of the Civil Service Statute Law, the body responsible for planning the development of the civil service in the National Public Administration organs is the Ministry of Planning and Development, and its functions include: a) ensuring compliance with the guidelines and procedures on recruitment, selection, access, classification, assessment, job remuneration, evaluation of performance, development, training, promotion, moves, transfers, leave of absence, leave, per diem, staff registers, disciplinary regime and termination of employment, as well as any other guidelines and procedures inherent to the system, b) conduct audits, studies, analyses and research to evaluate the implementation of the respective plans. Therefore it is suggested that the paragraph in question should be eliminated.”

If Venezuela’s suggestion is accepted, the text proposed by Ecuador would not be added.

Third Fourth, the Committee notes that Article 16 of the LEFP provides that anyone can apply for a position in the Public Administration, subject only to the restrictions stipulated in the Constitution of the Bolivarian Republic of Venezuela and its laws. However, the Committee notes that neither the Constitution nor the LEFP make any provision regarding restrictions or incompatibilities to prevent people related by consanguinity or affinity from holding a public office. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.1 (c) of this Report.

NOTE BY THE SECRETARIAT #15: Ecuador requests that the paragraph underlined below should be added:

“Fourthly, the Committee observes that Articles 35 and 36 of the Civil Service Statute Law (LEFP), with respect to incompatibilities, provide that public officials may not hold more than one remunerated public position. However, the Committee notes that “interim” or “welfare" positions are excepted from that incompatibility which means that their incumbents may hold another remunerated public office. (Chapter III, Section 1.1., recommendation 1.1.1. of this Report).” Venezuela replied as follows:

“We do not share the opinion expressed by the Ecuadorian Expert in the following paragraph, by virtue of the fact that this exception has constitutional force in accordance with Article 148 of the Constitution. It should be noted that the fact that another position is held cannot be to the detriment of the other remunerated public office held, especially as regards the duration of the working day.”

If Venezuela's proposal is accepted, the text proposed by Ecuador would not be added.

With respect to the system of government hiring of public servants in the National Legislative branch, the Committee takes note of the following:

First, the Committee notes that the Civil Service Statute of the National Assembly (EFAN) provides that a competitive examination is one of the conditions for entry into the legislative career service and that persons employed under contract are excepted from the application of the Statute and their employment shall be governed by the terms of their contract. The EFAN also

18

states that contracted staff may only be employed if people with special qualifications are required to undertake specific tasks for a specific period of time, and that in no case shall staff contracts be used as a method of access to a civil service position in the National Parliament. It further stipulates that if a staff contract infringes the terms of the Statute, it shall be declared void.


“In relation to the Secretariat’s suggestions, The following paragraphs show that as indicated in the EFAN, staff contracts are regulated by the legal provisions governing the respective contracts signed for the provision of services, in keeping with the needs of the organization, and cannot be otherwise, due to the fact that it is not possible for a provision with the status and force of law to establish the individual “nature of each specific area,” and even less so to determine needs that might later arise from unforeseen ones, particularly because an organization’s normal functions, tasks or activities are undertaken by career staff. Therefore the “Qualification” referred to in this provision is strictly needs-based; in other words, contracted staff must meet the requirements and have the abilities that would enable them to undertake the activities for which they were hired. The same applies to the duration of the contract, which is limited to satisfying the needs for which the contract was entered into and in no case may exceed the end of the fiscal year which begins on January 1 of each year and ends on December 31, because this would commit budget resources for future fiscal years without any budget availability, which would involve administrative accountability pursuant to Article 91 (12) of the National System for Fiscal Control (LOCGRSNCF).

Moreover, the legal provisions clearly and specifically prohibit staff contracts for functions assigned to staff in career positions. Moreover, contracted staff seeking employment as career staff must comply with the requisites on the matter, which include passing the corresponding public competitive examination. Therefore, we suggest amending the paragraphs as follows: (...)”

If Venezuela’s proposal is accepted, the text would be amended as shown below.

The Committee notes that the only criterion for defining contracted staff is that they must be “qualified to carry out specific tasks,” but no mention is made of what this qualification consists of, or the nature of the tasks. In addition, although it is provided that the contract must be for specific period of time, there is no mention of limitations, criteria or restrictions on the duration of such, nor whether successive contracts can be awarded and under what conditions.

Likewise, despite the fact that according to the EFAN, in no case shall staff contracts be used as a means of access to a civil service position in the National Parliament, the absence of any regulation or definition on the matter could mean that staff with similar functions to those of career staff could be contracted and since the duration of these contracts is not limited, they could be extended indefinitely. Thus, although these officials are not classified as civil servants, in practice that is what they are, without having to pass a public competitive examination or comply with the same regulations as career civil servants. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.2 (a) of this Report).

19

Secondly, the Committee observes that, as provided in the EFAN, the President of the National Assembly approves the standards on public competitive examinations proposed by the Human Resources Directorate. Competitive examinations must be advertised to give all potential candidates an equal opportunity to apply. However, there is no indication in the Response to the Questionnaire that these rules have been published, or that a regulated recruitment subsystem, based on the provisions of the EFAN, exists. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.2 (b) of this Report).

Lastly, the Committee is concerned that although the requirements for holding the offices regulated in the EFAN have been established, there appears to be no provision regarding restrictions or incompatibilities to prevent people related by consanguinity or affinity from holding a public office. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.2 (c) of this Report).

With respect to the system of government hiring of public servants in the Judicial branch, the Committee takes note of the following:

Firstly the Committee notes that, despite the existence of the Judicial Careers Law (LCJ), the only officials who have access to a career in the judiciary and whose employment is governed by that Law are judges10. Counselors of the Judiciary Council and the Magistrates of the Administrative Judicial Review Courts only enjoy the social security benefits of the Judicial Career, while Magistrates of the Supreme Court magistrates and Military Judges are exempt from compliance with the provisions of this Law11.

NOTE BY THE SECRETARIAT #17: Ecuador suggests that the text underlined below be added:

“The Committee points out that although Article 23 of the Judicial Careers Law (LCJ) states that competitions will be public and must be announced in a regional newspaper, but as these are national and not regional publications, not everyone in the country would be informed of the forthcoming public competitive examination which would prevent a larger number of suitable candidates from participating. The Committee points out that invitations could be more widely disseminated through media such as radio, television and the Internet.”

If Ecuador’s suggestion is accepted, the text would be added to the report.

The Committee also notes that Transitory Article 52 of the LCJ stipulates that Rapporteurs, Officials, Clerks of Court and others employed by Ordinary and Special Courts of Justice, with the exception of the Military ones, are governed by the Judicial Personnel Statute issued by the Judiciary Council. However, this Statute has not yet been published. Therefore, not only do these officials lack access to a career in the judiciary, but neither is there any legislation to regulate their functions and the system through which they are hired.

NOTE BY THE SECRETARIAT #18: The Bolivarian Republic of Venezuela presents the following observation:

“Considering that even though the Bolivarian Republic of Venezuela presented the new Organic Law on the Ombudsman’s Office, published in Official Gazette Nº 38,595 after the deadline for presentation of the response to the questionnaire, we consider that the following paragraph and 10 See Article 1 of the Judicial Careers Law (LCJ).11 See Article 4 of the LCJ.

20

the corresponding recommendation are not in order and therefore suggest that they be eliminated.”

The Secretariat points out that the analysis was conducted taking into account the information received on November 10, and that the Organic Law on the Ombudsman’s Office did not come into effect until January 2, 2007. Therefore it was not possible to make an in-depth analysis of this law or make recommendations. The Committee’s position is that in such cases the original text is left as it is and the information cited in a footnote as it appears in the document prepared by the Technical Secretariat.

If Venezuela’s proposal is accepted, the text shown below and the corresponding recommendation would be eliminated.

In the case of forensic surgeons and other employees of this dependency, the Committee finds that, according to the Organic Law of the Judiciary (LOPJ) they are freely appointed and removed from the National Executive, and although Transitory Article 53 states that Ombudsmen shall enjoy the same benefits and guarantees as those granted to judges under the LCJ, until such time as the Law regulating the Ombudsman institution is passed, at the date the Response to the Questionnaire was remitted, this Law has not been published12. The Committee will formulate recommendations in this regard. (Chapter III, Section 1.1., Recommendation 1.1.3. (a), (b) and (c) of this Report).

With respect to the system of government hiring of public servants in the Office of the Public Prosecutor, the Committee takes note of the following:

NOTE BY THE SECRETARIAT #19: Ecuador requests that “or their salary level” be added to the paragraph shown below. Since the entire paragraph was struck through at Venezuela's request (see the observation to the text prepared by the Secretariat in this box), the text proposed by Ecuador has been inserted in bold and italics to make it easier to read.

With regard to Ecuador’s request, the Bolivarian Republic of Venezuela formulates the following observation:

“Salaries for Public Administration positions are tabulated according to the salary decrees issued annually by the President of the Republic. Once this salary decree is published in the Official Gazette, the Ministry of Labor, through a Resolution also publishes in the Official Gazette the salary tabulator that will govern the remuneration for Public Administration positions. This is why the entities cannot individually establish salary levels.

Venezuela formulates the following observation regarding the text prepared by the Secretariat:

“In relation to the observations of the Secretariat in the following paragraph with regard to the time and functions of staff contracted by the Public Prosecutions Service, the same observation as the one made with respect to the general regime applies,. We therefore suggest the elimination of the paragraph and the corresponding recommendation.”

12 The Committee notes that the Bolivarian Republic of Venezuela presented the new Public Defense Organic Law published in Official Gazette Nº 38,595, after the deadline for submitting the response to the questionnaire, due to the fact that it came into effect on January 2, 2007. This is why this rule was not reviewed.

21

If Venezuela’s suggestion is accepted, the text struck through below would be eliminated and the following paragraph revised as it appears below.

See Note by the General Secretariat #16

First, the Committee notes that the Organic Law of the Office of the Public Prosecutor (LOMP) provides that the Attorney General, in order to enable the Public Prosecutor’s Office to carry out its functions satisfactorily, may hire professionals, technicians or experts in different areas, under the terms and conditions established in the corresponding contract, without them being subject to the provisions of this Law13. However, there appears to be no provision that regulates the conditions and guidelines under which such staff are hired, the duration of their employment or the type of functions they must perform. This lack of regulation could lead to the hiring of staff whose functions might be similar to those of career staff and, since there are no restrictions on the duration of these contracts, they could be extended indefinitely. Thus, although such officials are not classified as civil servants, in practice that is what they are, without having passed a public competitive examination or being subject to the same regulations as career civil servants. The Committee will formulate a recommendation in this regard14. (Chapter III, Section 1.1., Recommendation 1.1.4. (a) of this Report).

Secondly Firstly, the Committee notes that the Personnel Statute of the Office of the Public Prosecutor (EPMP), defines as a career official or employee those who enter the service of the Office of the Public Prosecutor by way of appointment, completed the probationary period and is in permanent employment15. It further states that employment in the Office of the Public Prosecutor is subject to an evaluation to determine whether candidates have the skills, knowledge and ability required for the functions they must perform. This Article also states that if the Attorney General deems this pertinent, professional posts can be filled based on the evaluation of credentials or a competitive examination, for which corresponding rules will be issued16.


“In relation to the observations made by the Secretariat and indicated in the following paragraph, it should be noted that on March 19, 2007, the Organic Law of the Public Prosecutor’s Office (LOMP) was published in Official Gazette Nº 38,647, and contains “TITLE VI, SYSTEM GOVERNING THE ADMINISTRATIVE CAREERS AND PUBLIC COMPETITIVE EXAMINATIONS,” which in Articles 93 to 114 everything related to access to that institution by public officials. Article 93 expressly indicates: “The career of officials of the Office of Public Prosecutions Service is hereby created and the rules on entry, promotion, transfer, suspension, stability and removal from office shall be governed by the provisions of this law and the Law on

13 See Article 22 of the Organic Law of the Public Prosecutor’s Office (LOMP).14 The Committee notes that on page 26 of the Response of the Bolivarian Republic of Venezuela to the Questionnaire, reference is made to a Recruitment Manual (Manual de Normas y Procedimientos para la Contratación de Persona Natural), in which the staff contracts handled by the Public Prosecutor’s Office are defined: Contracts for a Specific Period of Time; Contract for Consulting Services; Contract for Specific Works; Work Scholarship and Contract for Professional Fees. Subsequently, in an email sent on January 24, 2007, the Technical Secretariat received an explanation from the Bolivarian Republic of Venezuela indicating that this Manual is still at the preliminary draft stage, which why it was not reviewed.15 See Article 3 of the EPMP.16 See Article 7 of the EPMP.

22

the Personnel Statute of the Office of Public Prosecutions.” Moreover, positions classified as professional positions are offices that must be held by university graduates as opposed to those that are held by people with a technical training, and the rest of the staff that has a basic level of training. It is thus suggested that the following paragraph and the corresponding recommendation be eliminated.”

The Secretariat wishes to point out that the analysis was made taking into account the information received on November 10, 2006 and that the Organic Law of the Ombudsman’s Office did not come into effect on March 18, 2007. It was therefore not possible to make an in-depth analysis of this law and make recommendations. The Committee’s position is that in such cases the original text is left as it is and the information cited in a footnote as it appears in the document prepared by the Technical Secretariat.

If Venezuela’s suggestion is accepted, the text struck through below, and the corresponding recommendation, would be eliminated.

The Committee is concerned that with the exception of the appointment of the Senior Prosecutor and the Prosecutors of the Office of the Public Prosecutor and the Attorneys for Minors, merit-based competitive examinations do not appear to be one of the conditions for entry into the career service. Moreover, although competitive examinations are mentioned as optional requirements for holding professional positions, there are no regulations or guidelines on how such examinations should be held, nor is there any definition of the term professional positions or how these are distinguished from other career positions. Therefore the Committee will formulate recommendations in this regard17. (Chapter III, Section 1.1., Recommendation 1.1.4 (b) and (c) of this Report).

NOTE BY THE SECRETARIAT #21 : Colombia requests the incorporation of the text underlined below.

Thirdly, it should be noted that under the legislation the Prosecutor General is responsible for deciding whether professional positions should be filled through the evaluation of credentials or a public competitive examination. It is felt that this measure does not guarantee the equity, equality and efficiency of a career system because positions that should be filled through a competitive examinations and positions for which this is not necessary have not been defined. Therefore a recommendation on this matter will be formulated. (Recommendation on Page 62 of this report)

If Colombia’s request is accepted, the term “Thirdly” that appears in the subsequent paragraph would be replaced by “Fourthly.”

NOTE BY THE SECRETARIAT GENERAL #22: Ecuador requests that the following text be added to the paragraph on the positions listed in Article 3 of the EPMP to which people can be

17 The Committee notes that on page 26 of the Response of Venezuela to the Questionnaire, reference is made to a Recruitment Manual (Manual de Normas y Procedimientos para la Contratación de Persona Natural), in which the staff contracts handled by the Public Prosecutor’s Office are defined: Contracts for a Specific Period of Time; Contract for Consulting Services; Contract for Specific Works; Work Scholarship and Contract for Professional Fees. Subsequently, in an email sent on January 24, 2007, the Technical Secretariat received an explanation from the Bolivarian Republic of Venezuela indicating that this Manual is still at the preliminary draft stage, which why it was not reviewed.

23

freely appointed or removed from offices: “and void the discretionality of the Prosecutor General of the Republic, through a resolution, to classify a position as subject to free appointment and removal from office. This text was incorporated in bold and italics in the relevant paragraph in order to make it easier to read since the whole text was struck through at Venezuela’s request. (See Venezuela’s comment in the box below).

Venezuela formulates the following observation regarding Ecuador’s request:

“Offices subject to free appointment and removal are classified as such by virtue of the hierarchy and level of trust required of the public official in that position. That is why the highest authority needs a mechanism that enables it to move or remove an official classified as an official subject to free appointment and removal immediately.”

Venezuela formulates the following observation to the text originally prepared by the Secretariat:

“In the following paragraph we must point out that the classification of a position “of trust” is related to the type of function performed by the person, and not to the fact that its functions are “eminently technical” as the Secretariat pointed out. Article 19 and 20 of the Civil Service Statute Law (LEFP) state which officials can be freely appointed to and removed from office and their classification has nothing to do with them being “eminently technical” or professional, but it related to the type of function they perform. Hence an official who performs a function connected with the management or use of public resources, or to access to classified information in the organization, is necessarily in a position of trust, and as such may be freely appointed to or removed from office. We therefore suggest that the following paragraph and the corresponding recommendation be eliminated.”

To that effect the Secretariat wishes to point out that the list of positions whose revision was is the one contained in Article 3 of the EPMP, and that the reason why Article 8 was indicated in the draft preliminary report was the result of a typing mistake. Article 3 reads as follows:

“A position shall be considered as subject to free appointment or removal if an official or employee is freely appointed to or removed from office or if the position is considered as such according to a resolution issued the Prosecutor General of the Republic. The following are some of the positions subject to free appointment and removal by the Prosecutor General that are exempted from application of the careers system: Directors of the Public Prosecutor’s Office, Deputy Directors, Coordinators, Division Heads, Departmental Heads, Unit Heads, Auditors, Registrars of Goods and Materials, Warehouse Managers, General Service Supervisors, Internal Services Managers, Buildings Supervisors, Telecommunications Technicians, Copy Supervisors, Copy Machine Operators, Media Professionals, officials and employees who work in the Coordination Area and Secretariat of the Prosecutor General’s Office, Assistants and Deputy Directors of the Office, as well as officials and employees who provide security services to the Prosecutor General and the dependencies of the Public Prosecutor’s Office.”

If Venezuela’s observation is approved, the text struck through below, and the corresponding recommendation, would be eliminated.

24

Third, the Committee notes that the majority of the positions listed in Article 3 of the EPMP as positions that are subject to free appointment and removal are very technical in nature and could well be included within the list of positions open to the career service. The Committee believes that the country under review could consider revising this list and implementing a recruitment system in order to fill this type of vacancy through a merit-based competitive examination for access to the career civil service, taking away the discretionary power of the Prosecutor General of the Republic to qualify a post, through a resolution, as one for free appointment and removal. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.4 (d) of this Report).


“In relation to the text of the following paragraph, it should be noted that, as provided for in Article 85 of the Organic Law on Administrative Procedures, the interested parties may file an application for reconsideration or appeal to a higher level for reconsideration, whichever is applicable, against any administrative proceeding that puts an end to a procedure, prevents it from continuing, prevents a proper defense or determines in advance that it is final, if such an act harms the subjective rights or legitimate personal and direct interests of the parties. We therefore suggest that the paragraph and the corresponding recommendation be eliminated.” However, it is important to point out that the Civil Service Statute Law (LEFP) and the Partial Reform of the Public Tenders Law (DFLRPLL) adopted the peaceful and reiterated tendency of Venezuelan jurisprudence and doctrine too, in favor of eliminating the procedural requirement to exhaust all administrative channels before filing an appeal against an administrative decision before the contentious-administrative court. This is because this condition is deemed to be contrary to effective protection by the law. That is why procedures executed under this Law exhaust the administrative channels and allow the interested parties to take judicial action, as the exhaustion of such channels is not essential for filing an appeal against an administrative decision before the contentious-administrative court. However, the foregoing does not prevent the interested parties from choosing to file administrative appeals under the terms of the Organic Law referred to above. If the interested parties decide to file the respective administrative appeals, they must adhere to the statutory terms envisaged for filing them and for obtaining a decision. In those cases, only after filing an administrative appeals as a result of a decision, or because the deadline set for the Administration to issue its decision has expired, may the interested parties take judicial action. (Decision by the Supreme Ruling of the First Contentious-Administrative Court No. 194 of March 6, 2001). It is therefore suggested that the following paragraph and the corresponding recommendation be eliminated.”

If Venezuela’s suggestion is approved, the text struck through below would be eliminated.

Lastly, the Committee notes that the evaluating panel’s decisions on competitive examinations are final and cannot be appealed18. The Committee feels that it is important to consider the implementation of system that enables objections to be filed through an appeals process with access access to the selection process and the decisions of the evaluating panel. This would ensure compliance with the principles of openness, equity and efficiency as set forth in the Convention. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.4 (e) of this Report).

18 See Article 23 of the EPMP.

25

With respect to the system of government hiring of public servants in the Office of the Comptroller of the Republic, the Committee takes note of the following:

First the Committee notes that Article 1 of the Personnel Statute of the Office of the Comptroller General of the Republic (EPCGR) states that through special internal regulations the Comptroller General will complement and develop the provisions of this Statute and approve any manuals and rules of procedures that may be necessary. However, no such manuals or rules of procedure seem to have been published.

The Committee notes that Article 8 of the EPCGR states that entry to employment in the Office of the Comptroller General shall be subject to a merit-based competitive examination, open to candidates under equal conditions, in order to guarantee objectivity. It further stipulates that the Human Resources Directorate will keep a Register of Eligible Candidates for recruitment purposes, in accordance with the rules on this matter. However, the Committee finds that the rules that govern the recruitment subsystem have not yet been established and will formulate a recommendation in this regard. (Chapter III, Section 1.1, Recommendation 1.1.5 (a) of this Report).


“In the following paragraph the Secretariat repeats what was stated above, which is that Article 19 and 20 of the Civil Service Statute Law (LEFP) stipulate which officials can be freely appointed to and removed from office and which officials can perform high level positions or positions of trust. Their classification does not respond to whether the positions they are “eminently technical” or professional, but to the type of function performed. Therefore an official who performs a function involving the management or use of public resources, or access to classified information in the organization, necessarily holds a position of trust, and can thus be freely appointed to or removed from office. Thus, positions of trust cover functions that require a high degree of confidentiality. In that sense Article 21 of the Civil Service Statute Law (LEFP) provides that positions of trust shall cover functions that require a high degree of confidentiality in the offices of the highest authorities of the Public Administration, deputy ministers, director-generals and directors or their equivalents. They also include the functions of officials whose activities involve state security, oversight and inspection, fiscal revenue, customs, alien and border control, without prejudice to the legal provisions in force in this area. We therefore suggest that the following paragraph and the corresponding recommendation be eliminated.”

The Secretariat points out that the lists of positions in Article 4 of the EPCGR, whose revision has been suggested, are as follows:

o “High-level posts: Director General; Sectoral Director; Supervisory Analyst; Consultant Analyst; Assistant Consultant Analyst; Associate Consultant Analyst; General Consultant Analyst; Supervisory Attorney; Consultant Attorney; Assistant Consultant Attorney; Associate Consultant Attorney; General Consultant Attorney; Auditor General; Consultant Auditor; Assistant Consultant Auditor, Associate Consultant Auditor; General Consultant Auditor; Supervisory Administrator; Consultant Administrator; Assistant Consultant Administrator; Associate Consultant Administrator; and General Consultant Administrator.

o “Positions of trust: Coordinating Analyst; Senior Analyst; Junior Analyst; Assistant; Coordinating Attorney; Senior Attorney; Junior Attorney; Coordinating Auditor; Senior

26

Auditor; Junior Auditor; Audit Assistant; Coordinating Researcher; Senior Researcher; Research Assistant; Coordinating Administrator; Senior Administrator; Junior Administrator; Documentalist Coordinator; Pre-school Director; Teaching Coordinator; Educational Psychologist; Supervisory Communicator; Coordinating Communicator; Laboratory Technician; Dentist; Nutritionist; Coordinator; Security I; Security II; Security III; and Security Supervisor; and positions whose incumbents come under the Office of the Comptroller and the Office of the Deputy Comptroller.”

If Venezuela‘s observation is approved, the text struck through below would be eliminated together with the corresponding recommendation.

Second, the Committee considers that the majority of the positions listed in Article 4 del EPCGR as positions subject to free appointment and removal are very technical in nature and could well be included within the list of positions open to the career service. The Committee feels that the country under review should consider revising this list and implementing a recruitment system in order to fill this type of vacancy through a merit-based competitive examination for access to the career civil service. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.5 (b) of this Report).

Finally, the Committee points out that although Article 5 of the EPCGR states that the Director of Human Resources cannot be related to the Comptroller General within the fourth degree of consanguinity and second of affinity, Article 7 of the same Statute which defines the requirements for access to employment in the Office of the Comptroller General contains no provision regarding restrictions or incompatibilities to prevent people related by consanguinity or affinity from entering the service. The Committee, will formulate a recommendation in this regard. (Chapter III, Section 1.1., Recommendation 1.1.5 (c) of this Report).

1.1.3 Results of the legal framework and/or other measures

In the results section of the Response of the Bolivarian Republic of Venezuela to the Questionnaire19 a table with the heading, “Access by officials to employment in the Public Administration” and the following statement is found:

“During 2004, 2005 and up to September 30, 2006 a total of 11,581 people entered the civil service. A number of these officials entered into career positions without going through the public competitive examination process in accordance with the Constitution and legislation. However, a process was undertaken to evaluate the credentials for entering the Public Administration and its entities are now allowing all officials who entered the Public Administration without going through the competitive examination process and wish to become career officials, to sit on a competitive examination. This would not however affect their entitlement to the economic benefits of their present position.”

Table Nº 1Access by officials to employment in Public Administration *

Entry/Year 2004 % 2005 % 2006 to % Total staff

19 See pages 39 and 40 of the Response of Venezuela to the Questionnaire.

27

30/09/06 at 30/09/06Public competitive

examination 508 11% 118 3% 0 0% 626

Freely appointed and removed from

office

High level 81 2% 69 2% 31 1% 181

Officials of Trust 880 19% 582 15% 335 11% 1.797

Contract 1,081 23% 1,415 36% 1,486 51% 3,982Laborers 1,404 30% 1,149 29% 424 14% 2,977

Access to career public office without an

examination740 16% 625 16% 653 22% 2,018

TOTAL 4,694 100% 3,958 100

% 2,929 100% 11,581

*Source: National Assembly, Ministry of Foreign Affairs, Ministry of the Interior and Justice, Office of the Attorney General of the Republic, Office of the Public Prosecutor, Ombudsman’s Office and Office of the Comptroller General of the Republic.

First, it should be noted that Article 146 of the Constitution states that positions in the entities of the Public Administration are career positions and access to them is subject to a public competitive examination, based on principles of honesty, suitability and efficiency. There is further legislation on the matter, e.g. Article 40 of the Civil Service Statute Law which provides that “. . .appointments of career civil servants shall be null and void if they were not made on the basis of the competitive entry processes provided for in this law.”

NOTE BY THE SECRETARIAT #25: Venezuela formulates the following observation

“The analysis made by the Secretariat in relation to the previous table is completely wrong. The percentages given refer to the year shown at the left of the percentage and never to an accumulation. Therefore it is incorrect to say “over the last three years the proportion of officials who entered the career through a public competitive examination has fallen, to the extent that at September 30, 2006, it had reached zero, while there was a 22% increase in the number who entered the career without taking a competitive examination.” Furthermore, the table also only reflects information on the bodies indicated in the legend, and the its results cannot be deemed to cover the whole of Venezuela’s public administration. Lastly, nowhere is it provided that the contracting of personnel is a means of access to a career in the civil service. On the contrary, this is forbidden under Venezuelan law and anyone who is hired and wishes to apply for a career position must participated in the public competitive examination process referred to. It is therefore suggested that the following paragraphs be amended as follows.”

Therefore the Secretariat wishes to point out that the last paragraph which Venezuela suggests should be eliminated, is the standard paragraph that is used in all the reports wherever the information presented by the State under analysis does not allow a comprehensive assessment of the results of the bodies to be made in this area, resulting in a general recommendation that is similar for all the states under review. In this case the information presented by Venezuela in the summarized table only refers to the eight bodies that were included in the reference “Source” marked with an asterisk.

If Venezuela’s suggestion is accepted, the text would be amended as follows.

28

From the information provided by the Bolivarian Republic of Venezuela regarding the National Assembly, Ministry of Foreign Affairs, Ministry of the Interior and Justice, Office of the Prosecutor General of the Republic, Office of the Attorney General, Ombudsman’s Office, Supreme Tribunal of Justice and Office of the Comptroller General of the Republic , the Committee observes that over the last three years the proportion of officials who entered the career through a public competitive examination has fallen, to the extent that at September 30, 2006, fell, to the extent that in 2006, up to September, no competitive examination had been held in those bodies, whereas there is a 22% increase in the number who entered career positions without taking the respective competitive examination. it has reached zero, while the number who entered the career without taking a competitive examination is 22%. It should also be noted that even though, according to the explanation contained in the Response to the Questionnaire, the credentials of these officials were evaluated, this does not mean that they took the public competitive examination based on principles of honesty, suitability and efficiency referred to in Article 146 of the Constitution.

The Committee is concerned that the number of civil servants who entered the public administration in the last three years during the same period of 2006 under a contract has risen to reached 51%. Considering the foregoing, that these offices are not defined and that this type of hiring tends to be highly discretionary, this hiring mechanism could be used to employ staff who might be performing the same functions as career officials, but without having to comply with the same regulations as other public servants or having to pass a public competitive examination. The the Committee will formulate recommendations in this regard. (Chapter III, Section 1.1., Recommendation 1.1.6 (a) and (b) of this Report).

NOTE BY THE SECRETARIAT #26: Ecuador requests the incorporation of the paragraph underlined below:

“The Committee is also concerned about the proportion of civil servants who entered the public service in the last three years under a contract of free appointment to and removal from office, especially in that these are considered positions “of trust.” Considering that the majority of the positions listed as subject to free appointment and removal are eminently technical, this list might lead to the use of this hiring mechanism to employ staff who might be performing the same functions as career officials, but without having to comply with the same regulations as other public servants or having to pass a public competitive examination. The Committee will formulate a recommendation in this regard.”

If Ecuador’s suggestion is accepted, the paragraph will be added to the text of the Report.

In regards to the information that refers to the Judicial branch and the Office of the Public Prosecutor, the Committee considers that it does not have enough information that might enable it to make a comprehensive evaluation of the results of this topic, and as such, it will formulate a recommendation in this regard. (Chapter III, General Recommendation 4.2 of this Report)

1.2. GOVERNMENT SYSTEMS FOR THE PROCUREMENT OF GOODS AND SERVICES

1.2.1 Existence of provisions in the legal framework and/or other measures

29

The Bolivarian Republic of Venezuela has a set of provisions related to the above-mentioned systems, among which the following should be noted:

Constitutional provisions applicable to all state entities, among which the following should be noted:

Article 299 provides that the socioeconomic regime of the Bolivarian Republic of Venezuela is based on the principles of social justice, democratization, efficiency, free competition, protection of the environment, productivity and solidarity, with a view to ensuring overall human development and a dignified and useful existence for the community. The State, jointly with private initiative, shall promote the harmonious development of the national economy, to the end of generating sources of employment, a high rate of domestic added value, raising the standard of living of the population and strengthen the economical sovereignty of the country, guaranteeing the reliability of the law; the solid, dynamic, sustainable, continuing and equitable growth of the economy to ensure a just distribution of wealth through participatory democratic strategic planning with open consultation.

NOTE BY THE SECRETARIAT #27: Ecuador suggests the elimination of the text struck through below as it considers that it is not related to the point in question.

If the suggestion made by Ecuador is accepted, the text would be eliminated.

Pursuant to Article 308, the State shall protect and promote small and medium-sized manufacturers, cooperatives, savings funds, family-owned businesses, small businesses and any other form of community association for purposes of work, savings and consumption, under an arrangement of collective ownership, to strength the country's economic development, based on the initiative of the people. Training, technical assistance and appropriate financing shall be guaranteed.

Statutory and other legal provisions applicable to all State entities, among which the following should be noted:

- Article 38 of the Organic Law of the Office of the Comptroller General of the Republic and the National System for Fiscal Control provides that the internal control system implemented in the entities and agencies referred to in Article 9, sub-paragraphs 1 to 11, of this Law, must ensure that, before purchasing goods or services or preparing contracts that create financial commitments, the parties accountable must guarantee that the following requisites are complied with:

o Expenditure must be allocated to the appropriate budget item or to additional credits if applicable.

o There must be a budget available for the expense.

o The guarantees required must be sufficient to meet the obligations assumed by the contractor.

o Prices must be fair and reasonable, the only exceptions being those stated in other Laws.

30

o The provisions of the Public Tenders Law have been complied with, when appropriate, and in other applicable Laws.

The State must also ensure that before making any payments, the parties responsible must ensure that:

o Any applicable legal and regulatory provisions have been complied with.

o Budgetary credits or additional legally agreed credits have been properly allocated.

o Expenses have been budgeted for.

o Disbursements cover genuine and proven commitments, unless they are for advance payments to contractors or authorized advances to officials pursuant to the legislation in force.

o Payments are effectively credited to the party indicated.

Article 91, paragraph 1 states that, notwithstanding any civil, criminal or other statutory liability, administrative liability arises for acts, deeds or omissions with respect to the procurement of goods, services and works, if the appropriate procedures applicable in each case to the hiring of contractors are totally or partially not observed in accordance with the provisions of the Public Tenders Law or the applicable legislation thereto.

NOTE BY THE SECRETARIAT #28 : Ecuador formulates the following question:

“Does the Bolivarian Republic of Venezuela have any regulations that determine which cases or documents should be classified as confidential, or does the superior have the power to determine this?”

Venezuela replied:

“As stated in Article 59 of the Administrative Procedures Law (LOPA), the superior in terms of hierarchy is responsible for classifying documents as confidential based on a motivated decision.”

- Article 59 of the Organic Law on Administrative Procedures states that at any stage in the procedure the interested parties and their representatives are entitled to examine, read or copy any documents in the file, and obtain certified copies of them. Exceptions to this rule are documents classified as confidential by a hierarchal superior. Such documents shall be kept in a separate section of the file. Classification of a document as confidential must be based on a reasoned decision.

- Article 1 of the Decree-Law on the Partial Reform of the Public Tenders Law (DFLRPLL), states that the purpose of the Decree-Law is to regulate the procedure followed by the persons referred to in Article 2 of the Decree-Law to hire contractors to execute works, acquire movable property or provide services other than professional or labor services.

Article 2 provides that the entities listed below must comply with the provisions of the Decree-Law:

o National government agencies

31

NOTE BY THE SECRETARIAT #29: Colombia formulates the following question:

“It is not clear which are the national government agencies. Does it include the Congress? The control agencies? The armed forces? If these agencies are not covered, it would be appropriate to make a recommendation widening the scope of the Law Decree.”

In that regard, Venezuela makes the following comment:

“In response to the Colombian expert, we would like to inform that in agreement with article 136 of the Constitution of the Republic, the Public Power is distributed amongst the Municipal Power, State Power, and National Power. National Power is divided in Legislative, Executive, Judiciary, Citizen, and Electoral branches.”

o Autonomous institutes.

o The entities making up the District Capital

o State universities.

o Non-profit associations and companies in which the Republic and legal persons to which the previous paragraphs refer may own an equity stake of at least fifty per cent (50%).

o Non-profit associations and companies in which the non-profit associations and companies referred to in the previous paragraph own an equity stake of at least fifty per cent (50%).

o Foundations set up by any of the parties referred to in the previous paragraphs or in which they have the power to make management decisions.

o The States, Municipalities, autonomous state or municipal institutes, non-profit associations and companies in which they have a direct or indirect stake of at least (50%), as well as foundations set up by any of the entities mentioned in this paragraph, or those in whose management they have decision-making power, when the prices of the contracts to which this Decree-Law refers must be paid fully or partially paid out of their own funds, including the situado constitucional (the proportion of the national budget allocated to local state governments).

o Entities that receive subsidies or donations from the State or other public or private enterprises.

Pursuant to Article 3, the Decree-Law does not apply to lease agreements on real property, including financing, and the purchase of real property, insurance contracts and financial services provided by entities that are subject to the provisions of the General Law on Banks and Other Financial Institutions.

Article 4 also excludes processes for selecting contractors to supply goods or services or execute works from application of the Decree-Law if the total or partial value thereof was paid out of funds from international cooperation agreements between the Bolivarian Republic of Venezuela and other States; and it further states that the contracting entity must take steps to ensure that all

32

the mechanisms and resources available in the respective bidding conditions are used in such procedures so as to guarantee ample participation in national tenders for goods and services.

Article 5 defines the meaning of the terms Contractor, Participant, Professional Services, Contract, Qualification, Classification, Bidder, General Bid, Selective Bid, Direct Award, Proven Emergency, Production Process, Base Budget and Electronic Media, as follows:

o Contractor. Any individual or body corporate that execute works, supplies goods or provides non-professional, non-labor services for any of the entities governed by this Decree-Law, by virtue of a contract, without a relationship of dependency.

o Participant. Any individual or body corporate who obtained bidding conditions to participate in a General Bidding Process or an International Invitation Call for Bids, or anyone who is invited to bid in a Selective Bidding or Direct Award Process.

o Professional Services. Services provided by individuals or bodies corporate by virtue of scientific, professional, technical, artistic, intellectual, creative or teaching activities undertaken by them on their own behalf, or by staff under them.

o Contract. Legal instrument that regulates goods, services and works procurement, including purchase orders and service orders.

o Qualification. Outcome of examining a participant’s legal, technical and financial capacity of a participant to comply with obligations assumed under contract.

o Classification. Location of the interested party in specialist categories of the National Register of Contractors, defined by the National Contracting Service, based on its overall general technical capacity.

o Bidder. Individual or body corporate that has expressed an interest to participate in or offer any of the procedures foreseen in this Decree-Law.

o General Bid. Competitive procedure for selecting a contractor in which several foreign or national individuals or companies can participate, subject to compliance with the requisites set forth in this Decree-Law, its Regulations and the special conditions inherent to each process.

o Selective Bid. Exceptional competitive selection procedure used by a contractor in which the interested parties are invited by the contracting entity to bid on the basis of their technical, financial and legal capacity.

o Direct Award. Exceptional procedure for selecting a contractor in which the contractor is selected by the contracting entity pursuant to the provisions of this Law and its Regulations.

o Proven emergency. Unexpected events or circumstances that totally or partially paralyze the entity’s activities, or threaten to do so.

33

o Production process. Process through which different variables intended to achieve a finished product or a particular service converge.

o Base budget. Cost estimate based on technical specifications for the procurement of goods, services or works.

o Electronic media. Instruments, devices, elements or tangible or intangible components that obtain, create, store, manage, code, handle, move, control, transmit and receive, data or data messages either automatically or manually and whose meaning seems clear to human beings or the equipment designed to interpret such media.

Article 6 provides that the President of the Republic at a Ministerial Council may, in keeping with the plans for economic development, issue temporary measures so that the contracting of the entities referred to in Article 2 of the Decree-Law, compensate adverse or unfavorable conditions that affect small and medium industries and cooperatives. These measures include, inter alia, setting margins of preference, categories or amounts of reserved contracts, use of contracting schemes that involve the incorporation of goods with national value added content, transfer of technology, incorporation of human resources, programming of deliveries, which serve as a means of promotion and development for small and medium industries companies that produce goods or provide services and are located in certain parts the country.

Article 7 provides that in the evaluation of criteria, the contracting entity must take the necessary steps to incorporate as much national content as possible in bids for goods and related services produced by small and medium sized industries. It must also establish conditions conducive to national development by incorporating licenses for the use of technology. These conditions, which must be clearly defined, must be objective and non-discriminatory and will be identified in the call for bids and detailed in the bidding conditions.

Article 11 provides that a permanent bid commission must be created in the entities that are subject to compliance with the provisions of this Decree-Law. Depending on the complexity of the works to be carried out, the bid commissions may be set up to procure goods and services. These commissions shall have an uneven number of members who must be professionally qualified, competent and known for their honesty. They will be appointed by the highest authority of the procuring entity, preferably from its officials, and the legal, technical, economic and financial areas must be represented in the commissions.

Article 12 stipulates that the Comptroller General of the Republic and the contracting entity’s internal oversight body must appoint representatives to act as observers. These representatives shall not have the right to vote in the bidding processes.

Article 18 creates the National Procurement Service, which has, budgetary, financial and operational autonomy in all the areas under its responsibility. It is an organ of the Ministry of Production and Commerce20. Its attributions are defined in Article 19 and are the following:

o Submit to the National Executive the draft regulations necessary for the enforcement of the Decree-Law.

o Issue its internal regulations for its operation.

20 The website of the National Contracting Service (Servicio Nacional de Contrataciones) is: http://www.snc.gob.ve/

34

o Issue decisions on matters within its competence, as required by the judicial or administrative authorities.

o Keep the National Register of Contractors up to date using available technology.

o Establish the organizational and operational standards of the National Register of Contractors as well as the criteria according to which the classification of the specialty and the legal and financial qualification of the interested parties will be determined, so they can be included in the National Register of Contractors.

o Suspend anyone who infringes the provisions of the Decree-Law of the National Register of Contractors, in accordance with the foreseen procedures.

o Design and coordinate the information systems and the procedures for enforcing this Decree-Law.

o Design and coordinate the implementation of procurement training programs in conjunction with the Superintendence for the Promotion and Protection of Free Competition.

o Obtain, compile, systematize, disseminate and provide information on the annual and quarterly programming of procurement processes to anyone who requests it.

o Approve the amounts to be charged for their services, publications or the provision of available information.

o Promote and strengthen the creation and enhancement of technical standards on works, goods and services, in coordination with the competent agencies and institutions.

o Promote and strengthen the creation and enhancement of oversight systems for works, goods and service procurement by the entities referred in Article 2 of this Decree-Law.

o Follow up the information received from the entities that must comply with the provisions of this Decree-Law.

o Prepare files containing irregularities so they can be submitted to the Office of the Comptroller General of the Republic and so that the sanctions provided for in this Decree-Law are applied.

o Any other attributions stipulated in this Decree-Law and its Regulations.

Pursuant to Article 23, each October prior to the end of each fiscal year, the entities that must comply with the provisions of the Decree-Law shall remit the program of works, services and goods procured for the following fiscal year to the National Procurement Service. Procurement classified as confidential for security reasons is exempt from this requirement.

Article 24 provides within fifteen (15) consecutive days after the end of each quarter, entities that are subject to compliance with the provisions of the Decree-Law, must remit to the National Procurement Service a summary of procurement undertaken during that quarter, for each procedure envisaged in this Decree-Law. The summary must contain the identification of each

35

procedure, its type, object, name of the participating companies, the successful bidder and the amount of the contract.

In accordance with Article 28, the National Register of Contractors must operate from the headquarters of the National Procurement Service in accordance with the provisions of the Decree-Law; and the Minister of Production and Commerce may create or eliminate Auxiliary Registries.

Article 29 states that the purpose of the National Register of Contractors is to centralize, organize and supply basic information, in a manner that is efficient, reliable and timely, so that it can be qualified on the basis of its legal and financial content and classified by specialty, under the terms stipulated in the Decree-Law and its Regulations. It must therefore:

o Undertake the ongoing systematization, organization and consolidation of the data provided by the persons who are registered and the entities governed by this Decree-Law.

o Provide to the public and private entities with information on the persons registered.

o Prepare and publish a directory containing the qualification and classification of contractors by specialty.

o Request from the contractors the documentation required under this Decree-Law and its Regulations, so that it can be identified, qualified in accordance with its legal and financial content, and classified by specialty.

o Agree or deny registration pursuant to the terms of this Decree-Law.

o Decide on the legal and financial qualification and classification by specialty, in keeping with the standards and procedures laid down by the National Procurement Service.

o Agree or deny the issuance of the certificate of registration, having ascertained compliance with the requirements under the Law and its regulations.

o Take any other action indicated in the Law and its Regulations.

NOTE BY THE SECRETARIAT #30: The Bolivarian Republic of Venezuela suggests that the word “shall" be replaced by "may" as indicated below.

However, the Secretariat points out that the text of the paragraph related to Article 30 was copied from the decree with the status and force of law containing the Partial Reform of the Public Tenders Law, in which the term “shall” is used, as it appears in the original text.

If the suggestion of the Delegation of Venezuela is approved, the text would be amended as it appears below.

Article 30 states that anyone shall may ask to see the information contained in the National Register of Contractors.

36

Article 31 states that the National Register of Contractors may require that registered persons submit all the documentation stipulated in the provisions of the Decree-Law and its Regulations, and they are under obligation to provide it when requested. The may also examine any books or documents and carry out any audits or evaluations considered necessary, on any persons who applied for registration and who registered or entered into contracts with any of the entities governed by the Decree-Law within the previous three (3) years.

Article 34 provides a resource to ensure the continuous improvement of these processes by allowing the procurement entities to assess the contractor’s performance in the different categories of contracts established in the Regulations to the Decree-Law. The results of the assessment must be reported to the contractor by management or the unit responsible for the technical aspects of the contract, no later than twenty (20) working days after conclusion of each contract, and must indicate the circumstances that occurred during execution thereof. The contractor may file an administrative recourse as provided for under the Organic Law on Administrative Procedures.

Article 36 stipulates that contractors must be registered in the National Register of Contractors in order to tender offers for any General or Selective bidding processes or Direct Award process governed by this Decree-Law for an amount in excess of five hundred tax units (approximately US$7,665.00) in the case of procurement of goods or services, or one thousand five hundred tax units (approximately US$22,995.00) in the case of construction of works. Inclusion in the National Register of Contractors shall not be required for International Invitation Call for Bids, scientific or artistic works and highly specialized services used only sporadically.

Article 42 provides that the procedures for recruiting contractors under the provisions of the Decree-Law will be carried out based on the principles of economy, transparency, honesty, efficiency, equality, competence and publicity.

Article 45 determines that the bidding conditions must contain, at the least, a clear explanation of the goods, services or works to be procured, lists of quantities, related services, drawings if appropriate and detailed technical specifications of the goods to be purchased or included in the works, if applicable. If there are any compulsory standards that must be complied with, such as COVENIN standards or other any other compulsory technical standards, these must be included in the technical specifications; language of the statements of intent and offers, time and place for submission of bids, and the minimum period of validity, currency of the bids and exchange rate to a common currency to be applied; time and place at which participants may ask that the contracting entity clarify the bidding conditions; authority authorized to respond to queries, amend bidding conditions and report decisions during the procedure. The bid must give the address to which notifications are to be sent and the names of the persons responsible for receiving them; how any arithmetical errors or disparities in the amounts included in the bids would be corrected, their weighting and the manner in which such criteria will be quantified; evaluation criteria, their weighting and how price and other factors defined as criteria will be quantified, taking into account the aspects contained in Chapter I, Title II of this Decree-Law; deadline for awarding the bid; draft contract which will be signed by the beneficiary of the formal award of the contract; standards, methods and tests that will be applied to determine whether the goods or works delivered meet the conditions defined; method, deadline and conditions for delivering the goods or services or executing the works contracted; conditions and requisites of the performance bonds or guarantees; and sample statements of intent, bids and guarantees.

37

NOTE BY THE SECRETARIAT #31: Colombia proposes the elimination of the previous paragraph whose text is struck through because it is considered to contain the same information as Article 47.

Article 47 states that bidding conditions must, at least, contain a clear and concise definition of:

o The goods, services or works to be procured with lists of quantities and related services and drawings, if applicable.

o Detailed technical specifications of the goods to be purchased or included in the works, if applicable. COVENIN standards and any other compulsory technical standards must be included in the technical specifications.

o Language of the statements of intent and bids, deadline and place for submitting them, and minimum period of validity.

o Currency of the bids and conversion rates to a common currency.

o Deadline and place where participants may ask the contracting entity to clarify the bidding conditions.

o Authority authorized to clarify queries, amend bidding conditions and notify decisions regarding the procedure.

o The requirement that the offer stipulate the address where notifications must be made and the person responsible for receiving them.

o The manner in which any arithmetical errors or disparities in the amounts included in the offers would be corrected.

o Qualification criteria, their weight and how such criteria will be quantified.

o Evaluation criteria, their weight and how price and other factors defined as criteria will be qualified, taking into account the aspects contained in Chapter I, Title II of this Decree-Law.

o Deadlines for awarding the contract.

o Draft contract to be entered into with the beneficiary of the contract award.

o Standards, methods and tests to be applied to determine whether the goods or works delivered meet the specifications.

o Method, deadline and conditions for delivering the goods or services or executing works procured under the bid, and any related services that the contractor must provide under the terms thereof.

o Conditions and requisites of the guarantees required under the contract.

o Sample statement of intent, bid and bonds or guarantees.

38

Article 58 states that receipt and opening of envelopes containing statements of intent and bids shall be public. All other procedures shall be decided by the interested parties in accordance with the terms and conditions established in this Decree-Law.

Article 60 stipulates that invitations to tender must be announced on the two (2) days of the week established in the regulations on the matter. These announcements must be published in a major national newspaper and must be grouped consecutively on one or several pages, until such time as an official circular is published for that purpose.

Article 61 states that a General Bidding Process or an International Invitation Call for Bids shall be used:

o For the procurement of goods and services if the estimated amount of the contract to be granted is for an amount in excess of eleven thousand tax units (approximately US$154,000); and

o In the case of the construction of works, if the estimated amount is for an amount in excess of twenty-five thousand tax units (approximately US$349,000)

Article 67 provides that invitations to tender in General Bidding Processes or International Invitation Call for Bids shall be published in a major newspaper.

Article 72 states that a Selective Bidding Process shall be used:

o If the estimated amount of a contract for the procurement of goods or services is more than one hundred thousand tax units (approximately US$15,349) and no more than eleven thousand tax units (approximately US$154,000);

o If the estimated amount of a works contract is more than eleven thousand five-hundred tax units (approximately US$161,000) and no more than twenty-five thousand tax units (approximately US$349,000)

Article 73 adds that a Selective Bidding Process is in order in the following cases, provided that the highest authority of the contracting agency or entity provides a reasoned decision to justify using this method:

o Procurement of highly specialized equipment for experimental, research and educational purposes.

o For reasons of State security, as stipulated in the Regulations to the Organic Law of the Office of the Comptroller General of the Republic.

o If, according to the information provided by the National Register of Contractors, the goods required are produced or sold by no more than five (5) manufacturers or suppliers, or if no more than five (5) companies are able to execute the works or provide the services in question.

Article 79 indicates that when qualifying, examining, evaluating and deciding on a contract, the contracting entity must abide by the bidding conditions, in terms of the definition, weighting and procedure established therein.

39

Article 85 states that the Commission’s report must recommend that a contract be awarded on the basis of the criteria and mechanisms contained in the bidding conditions. In no case may the Commission apply criteria or mechanisms that are not contained in those conditions, or change or fail to apply the conditions contained therein. The report must indicate whether there are other offers that satisfy the bidding conditions and could be the second or third choice.

Article 87 provides that Direct Awards shall be used:

o For the procurement of goods and services when the estimated amount of the contract does not exceed one hundred thousand tax units (approximately US$15,349)

o For the construction of works, when the estimated amount of the contract does not exceed eleven thousand five hundred tax units (approximately US$161,000)

o For goods, services or works to be procured from a public sector entity.

Pursuant to Article 88, a Direct Award Process is in order in the following cases, provided that the highest authority of the contracting agency or entity provides a reasoned decision to justify this method:

o For supplies required to continue the production process, if a delay in opening a bidding procedure is likely to seriously affect the continuity of the production process;

o For the purchase of artistic or scientific works.

o If, according to the information provided by the National Register of Contractors, the goods and services to be procured are produced, sold or provided by a sole manufacturer or supplier or if the technical conditions of the goods, services or works in question exclude the possibility of any competition whatsoever.

o For contracts for manufacturing equipment, purchasing goods or contracting services where it is not possible to apply bidding procedures, given the modalities under which the manufacturers and suppliers agree to produce or supply the goods, equipment or services in question.

o If a state of emergency or civil unrest is declared at home or abroad.

o In the event of a proven emergency within the respective agency or entity.

o In the case of services that are essential to keep the institution operating.

o In the case of works or goods regulated by contracts that have been annulled or rescinded and a delay in opening a new bidding procedure might be detrimental to the contracting entity.

o In the case of the procurement of works, services or goods procured which, for reasons of general interest, must be undertaken within a maximum period of one hundred and eighty (180) working days, in keeping with an exceptional economic and social development plan already approved at a Ministerial Council. The works, services and goods to be contracted through a direct award process will be

40

defined in detail at a Ministerial Council, as will the agencies or entities responsible for their execution.

Article 95 states that all bidders must be informed of the award decision, which concludes the bidding procedure. Bidders who are disqualified from the process must also be informed of the reasons for taking the decision.

Article 96 provides that the notifications referred to in this Decree-Law must fill the requisites established in the Organic Law on Administrative Procedures and must be delivered to the address given on the register of recipients of bidding conditions, unless otherwise indicated on the offer.

Article 97 states that in the case of the notification of the decisions issued by the National Register of Contractors, this must be delivered to the address indicated on the interested party’s request for registration.

Article 101 stipulates that the filing of an appeal shall not suspend the contested decision to award the contract.

Article 102 provides that decisions issued by the highest authority of the contracting entity or the highest authority of the National Procurement Service are the last recourse to administrative action and these decisions can only be appealed through an administrative recourse pursuant to the Organic Law on Administrative Procedures.

Article 107 stipulates that all statements of intent, bids and any other documents received or taken into account in the bidding or direct award procedures, as well as reports, opinions and any other acts or actions arising therefrom, must be included in the file. This file shall be kept in the archives of the administrative unit of the contracting entity for at least three (3) years after the procedure is concluded.

Article 108 points out that all the bidders in a procedure governed by this Law shall be entitled to examine, read or copy any documents in the file, examine the file, and obtain certified copies of them after the procedure is concluded, regardless of the result. Exceptions to the provisions of this article are documents classified as confidential according to the Organic Law on Administrative Procedures. The file may be examined, read or copied during the contracting entity’s working hours, subject to a written request at least two (2) working days in advance.

NOTE BY THE SECRETARIAT #32: Colombia observes that it is not clear to what the expression “buena pro” refers and suggests that the term be changed or eliminated from the text.

Venezuela replies as follows:

“In the following paragraph the Colombian expert points out that ‘it is not clear to what the expression “Pro” refers.’” In Venezuela the term “buena pro” is used to indicate the awarding or approval of an offer or bid by the Public Administration entities. Therefore the meaning here is “when a contracted is awarded” and this is contained in our legislation. Therefore none of the struck-out text proposed by the Colombian expert in this respect is in order.”

Article 112 provides that if a contract is awarded, or any other decision reached under this Decree-Law and its Regulations, on the basis of false information or the infringement of legal provisions, the contracting entity may declare the award null and void.

41

Article 113 states that the contracting entity may declare contracts void in the following cases:

NOTE BY THE SECRETARIAT #33: Ecuador comments that, if appropriate, the text on the declaration of the nullity of the contracted awarded (buena pro) should be clarified or completed, but did not suggest that the text should be amended.

o If the award through which the contract was awarded is annulled.

o If according to the Law the contracts should have been subject to General or Selective bidding procedures and the contract was awarded without those procedures being followed.

o If the contracts awarded do not comply with the conditions set forth in the respective bidding conditions and the offers submitted.

Article 117 provides that the procedures for selecting contractors contained in the Decree-Law may be undertaken using information technology and communication methods that guarantee the principles of transparency, honesty, efficiency, equality, competence, publicity, authenticity, rule of law and confidentiality. In order to guarantee these principles, the contracting entity must use security systems that allow participants free access to the documents registered or stored in electronic format or similar methods that must be stipulated in the bidding conditions.

Article 118 states that when the procedures for selecting contractors envisaged in the Decree-Law call for compliance with certain formalities and conditions, these may be carried out using electronic methods.

Article 119 stipulates that, subject to approval by the Bid Commission, the contracting entity, depending on its availability and technological preparation, must include in the bidding conditions the possibility of participation through electronic bidding methods, in which case the technological aspects, programs and other requirements necessary in order to participate in the respective selection procedure must be specified. Only secure and commonly used elements and programs may be used and impartiality guaranteed, regardless of the technology used. In the case of programs that allow documents, communications and bids to be read, displayed and understood electronically, at least three (3) programs whose quality is widely acknowledged shall be made available. Contractors may choose to use whichever program they prefer. In all cases, compliance with the principles foreseen in this law and the applicable rules contained in legislation on data messages and electronic signatures shall be guaranteed.

Article 121 provides that in the procedures that employ electronic media to select contractors, contractors may participate using the electronic methods and/or the other methods foreseen in this Decree-Law. Therefore the existence of mechanisms that allow persons who do not have access to those methods to exercise their rights and comply with their obligations using traditional methods shall be guaranteed in order to ensure respect for the principle of non-exclusion.

- Article 1 of the Partial Regulations of the Decree on the Partial Reform of the Public Tenders Law (RPDRPLL) states that its purpose is to develop the rules of the Decree-Law on the Partial Reform of the Public Tenders Law which regulates the National Register of Contractors and registration, the Auxiliary Registries of Contractors, the Bid Commissions, direct awards and the suspension and reintroduction of bidding procedures.

42

Pursuant to Article 13, Auxiliary Registries have the following attributions:

o Request that contractors furnish all the documentation required according to the rules of the National Procurement Service procedures in order to ascertain the identification, legal and financial qualification and classification by specialty.

o Send to the National Register of Contractors the information required for registration, in keeping with the rules established by the National Procurement Service.

o Carry out audits, under the coordination of the National Register of Contractors, on companies that are registered or have applied to register, in keeping with the rules established by the National Procurement Service.

o Inform the National Procurement Service of any cases where fraudulent practices or corruption on the part of a registered company or a company that applied to register or update or renew its new registration, are detected.

o Any others that are delegated by the National Procurement Service to the Auxiliary Registries.

Article 14 states that in order to register on the National Register of Contractors, the interested parties must log on to the online National Register of Contractors (RNC) system through its webpage and provide general, legal and financial data and information on the specialty following the instructions contained in the User’s Manual for Contractors prepared by the National Procurement Service. After entering the data required by the system, applicants present the documents required by the National Procurement Service and the forms produced online by the RNC system at an Auxiliary Register. For applicants who are unable to register on line, the National Register of Contractors will create alternative mechanisms to enable them to register.

Article 28 provides that in the case of a Direct Award, in keeping with the provisions of Articles 87 and 88 of the Decree on the Partial Reform of the Public Tenders Law, the contracting entities may choose to use private bidding and price consultation mechanisms.

Article 29 indicates that whenever possible when contracts are award directly the contracting entity must comply with the terms contained in Article 28, in the order in which they are listed and justify its selection of the bidder and the reasons for not using the other mechanisms available, if applicable.

Article 30 states that in the case of a private bid, the contracting entity shall request offers from at least three (3) companies, in sealed envelopes and the selection shall be made taking into account compliance with the criteria contained in the requirements.

Article 31 provides that in the case of a price consultation, the contracting entity must obtain quotes from at least three (3) companies before deciding which one to award the contract to.

Article 34 provides that the Ministers and senior authorities of the entities referred to in Article 2 of the Decree-Law on the Partial Reform of the Public Tenders Law must adopt the necessary measures so that contracts that are to be financed through international cooperation agreements between the Bolivarian Republic of Venezuela and other states contain the highest possible proportion of domestic inputs.

43

- Article 1 of the Partial Regulations on the Decree on the Partial Reform of the Public Tenders Law for Direct Awards, states that its purpose is to establish the procedure to be followed for direct awards by the persons referred to in Article 2 of the Decree on the Partial Reform of the Public Tenders Law. The hiring of contractors for goods, services or works must be executed within a maximum period of one hundred and eight (180) working days in accordance with the Exceptional Economic and Social Development Plan drawn up to promote small and medium industry and alternative enterprises such as collective enterprises, cooperatives and self-managed microenterprises.

Article 3 states that the contracting entities and agencies must incorporate in the evaluation criteria the highest possible proportion of domestic inputs of goods and related services produced by small and medium industries or alternative enterprises such as: collective enterprises, cooperatives and self-managed microenterprises, complying with the temporary measures in force and any others pertinent measures issued by the National Executive.

Article 4 provides that offers submitted by the enterprises mentioned in the previous article shall be evaluated and considered if their headquarters or place of manufacture is physically located in the area where the contracting entity or agency that needs the goods, services or works is located, in accordance with these Regulations.

Pursuant to Article 5, bids shall be selected through a competitive price evaluation of the submitted offers, considering the National Value Added (NVA), contracts reserved for the State and the additional preference laid down in Article 4.

Article 6 states that the contracting entities and agencies that conduct procedures in accordance with these Regulations must:

o Select the small and medium enterprises, cooperatives and other collective associations that are on the National Register of Contractors.

o Issue and approve the conditions of the Participation and Technical Specifications of the public contracts included as programs or projects in the Exceptional Economic and Social Development Plan prior to compliance with the technical standards and regulations in force, and deliver them with the invitation to participate in the direct tender process foreseen in these Regulations.

o Establish the public competitive examination mechanism for the receipt and opening of offers at which the companies selected and interested in participating will be present, respecting the principles set forth in Article 42 of the Decree on the Partial Reform of the Public Tenders Law.

o Remit to the National Procurement Service within ten (10) working days following the signature of each of the contracts executed in accordance with these regulations, a list of the following details: number, date, purpose and amount of the contract, and name of the federal entity in which it will be executed. The incorporated name of the successful bidder must also be given, its Fiscal Information Registration (RIF) number, and the incorporated names of the participating companies and their respective RIF numbers.

- Presidential Decree No. 1,427 on general procurement conditions for the publication of works governs contracts entered into by the Republic through Ministries or other Central Administration agencies. This Decree bans contractors from partially or totally assigning or transferring a

44

contract without authorization from the contracting entity and further states that the contractor must post a performance bond issued by a bank, financial institution or insurance company, to the satisfaction of the contracting entity, for the amount indicated in the main document, to guarantee compliance with all the obligations assumed under the contract.

NOTE BY THE SECRETARIAT #34: Ecuador asks whether the legislation of the Bolivarian Republic of Venezuela stipulates a fixed percentage for performance bonds.

Venezuela replies as follows:

“Article 10 of the General Bidding Conditions for Works Execution provides that ‘To guarantee compliance with all the obligations assumed under the contract, before signing a contract, contractors must post a performance bond issued by a bank or insurance company to the satisfaction of the contracting entity, in accordance with the text drafted by said entity and for the amount indicated in the main document. This bond must be joint and several and must be posted through an authenticated or registered document and stipulate that the guarantor waives its benefits under Article 1,833, 1,834 and 1,836 of the Civil Code. However, there is no fixed amount since it is established ‘to the satisfaction of the contracting entity.’’”

This same Decree states that the contracting entity must monitor and inspect the work undertaken by the contractor and the contract must indicate the period that must elapse before it is certain that the works and related installations, equipment and services are free of defect and operate properly.

Article 9 of the Decree states that any queries, controversies and complaints that may arise as a result of the contract and are not solved by the parties by mutual agreement or in the manner foreseen in the Decree, shall be settled by the competent courts of the Bolivarian Republic of Venezuela in conformity with its laws, and no complaints from other countries shall be admitted for any reason whatsoever.

- Presidential Decree No 3,798 on the temporary measures for establishing the amounts and categories reserved for alternative companies that manufacture goods, provide service and execute works. Alternative companies mean: bodies corporate of a social and participatory nature, whose main domicile can only be in Venezuela, which have been incorporated under the legislation applicable to them, such as cooperatives, family firms, microenterprises and any other form of community association for the purpose of work.

Article 4 indicates that in the case of procedures for selecting contractors envisaged in the Decree-Law of the Partial Reform of the Public Tenders, cost-based competitive contracts and the following categories are reserved for alternative enterprises:

o Amounts: For the procurement of goods and services, if the estimated amount of the contract does not exceed ten thousand five hundred tax units (approximately US$160,965.00); for the procurement of works, if the estimated amount of the contract does not exceed twenty-four thousand tax units (approximately US$367,920.00).

o Categories:

o Goods: LINENS: sheets, towels, blankets table cloths, table napkins and similar items; CLOTHING: men’s shirts, jackets, pants, women’s blouses, T-shirts, caps,

45

uniforms for cleaner and laboratory technicians, overalls, nurses uniforms, vacation camp and sports uniforms; etc.

o Services: maintenance, repairs and cleaning of homes, buildings and other premises and oil installations; this includes cleaning of windows, blinds and ceilings, etc.; electricity, which includes for example: installation, cabling, electrical and light sockets and switches; cleaning and unplugging of drains, gutters and general plumbing; maintenance and repair of black, gray and white water plant and equipment at oil fields and industrial facilities; sump cleaning, collective and individual personnel transportation; transportation and collection of oil waste; cleaning of automotive vehicles, trains, and boats and shipping vessels; mechanical and electrical maintenance, upholstery, vehicle bodyshop and paintshop, upholstery, and mechanical and electrical maintenance; and minor mechanical work; general hotel and hotel services maintenance; carpet fitting; installation of doors, bolts, locks and cylinders; general and laundry services; road marking, signing, cleaning and pothole patching; manufacture, maintenance and repair of office and school furniture and equipment; food and refreshment supplies; vacation plans, organization of events an protocol, beach and club cleaning; unarmed security; non-toxic waste collection and disposal; vegetation control: cutting, trimming, sewing and maintenance of ornamental plants, irrigation, maintenance of squares, parks and gardens; water plant and watering systems; railway cleaning; dual-mode vehicle repair; urban, internal, intraurban and interurban messaging; minor repairs and maintenance of office, medical, refrigeration, telecommunications, and computer equipment and accessories not covered by the original equipment manufacturer (OEM); ironwork and carpentry, including repair, manufacture and maintenance of furniture, buildings and premises; minor repairs and maintenance of industrial assets (drills, flow stations, electrical plant, oil wells, machinery, etc.)

o Works: Minor completion and installation: paintwork, partitioning, floors, ceilings, plastering, windows, blinds, doors and stairs; refurbishing, expansion, maintenance and enhancement of civil works anywhere in any geographical region.

- Presidential Decree No 4,000 on temporary measures for the promotion and development of small and medium industries, cooperatives or any form of collective enterprise, goods manufacturers, service providers and works enterprises in the country.

1.2.2 Adequacy of the legal framework and/or other measures

With respect to the constitutional and legal provisions that refer to the principal systems of the procurement of goods and services in the Bolivarian Republic of Venezuela that the Committee has examined, based on the information available to it, they constitute a set of measures relevant to promoting the purposes of the Convention

Notwithstanding, the Committee considers it appropriate to make a number of observations on the advisability of complementing, developing and amending certain legal provisions that refer to those systems:

NOTE BY THE SECRETARIAT #35: Colombia suggests the addition of the following paragraph:

46

- In the first place, the Committee considers it necessary to establish constitutional provisions containing the general principles on government procurement. The Committee will formulate a recommendation. (Recommendation on Page 63 of this report).

If Colombia’s suggestion is approved, the text would be added and the corresponding paragraphs numbered accordingly.

The Delegation of Venezuela formulates the following observation:

“In the following paragraph the Colombian Expert states the need to establish constitutional provisions to regulate public contracts. We differ from the expert's opinion as we consider that although it is true that our Constitution deals amply with everything regarding the country’s economic system, it is no less true that a matter such as this can be, and ín fact is, covered very well by sub-legal provisions. We therefore suggest that the paragraph proposed by the Expert be eliminated.”

If Venezuela’s observation is accepted, the text proposed by Colombia would not be added


“Insofar as the following paragraph refers to “contracting of services, when their total or partial cost has been defrayed with funds provided through international cooperation agreements between the Bolivarian Republic of Venezuela and other States,” it is evident that the applicable system cannot be in the Public Tenders Law but in the international agreement or convention signed by the Bolivarian Republic of Venezuela, in other words that these agreements are State to State and governed by the terms and conditions defined by the States themselves. However, it should be mentioned that although no bidding process is mentioned in the terms applicable to the other contracts, there is a process for electing contractors that complies with some parameters defined in the international cooperation agreement or convention. Lastly, the fact that this type of contract is not subject to a bidding process does not mean that it does not comply with the Venezuelan legislation in force which is contained in the Organic Law on the Financial Administration of the Public Sector, the Organic Law of the Office of the Comptroller General of the Republic and of the National Fiscal Control System (LOCGRSNCF). Therefore we suggest that the following paragraph and the corresponding recommendation be eliminated.”

If the suggestion of the Delegation of Venezuela is accepted, the text struck through below would be eliminated, together with the corresponding recommendation.

- First, with regard to procurement systems with or without a public tender, the Committee notes that Article 4 of the Decree-Law on the Partial Reform of the Public Tenders Law (DFLRPLL) excludes from its application processes for selecting contractors for the construction of works, purchase of goods and contracting of services, when their total or partial cost has been defrayed with funds provided through international cooperation agreements between the Bolivarian Republic of Venezuela and

47

other States, but does not define which other regulatory system shall govern this type of procurement process. As such, the Committee wishes to point out that this lack of precision could result in these processes being highly discretionary and liable to undermine the principles of openness, equity and efficiency laid down in the Convention. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.1 (a) of this report).

NOTE BY THE SECRETARIAT #37: Colombia suggests that the following text be added:

In relation to Article 3 of the Decree with the status and force of law containing the Partial Reform of the Public Tenders Law (DFLRPLL), it is proposed that the grounds on which insurance or financial service contracts are excluded from the application of this Decree be revised, since there is nothing to justify their exclusion. The Committee will formulate a recommendation in this regard. (Recommendation on page 63 of this report).

In relation to Article 6 of the Decree Law, the expression “adverse or unfavorable conditions,” granting a margin of discretionality to whoever makes the decisions, is not clear. Therefore the Committee will formulate a recommendation. (Recommendation on page 64 of this report).

In that respect the Secretariat points out that if Colombia’s proposal is accepted, the recommendations would be numbered accordingly.


“In relation to the comments made by the Secretariat in the following paragraph to the effect that in Article 73 of the Partial Reform of the Public Tenders Law (DFLRPLL) “there is nothing to define what is meant by a reasoned decision, or what constitutes sufficient justification, what the requirements to justify that this method is in order would be, or who would be the authority responsible for approving this justification,” the Delegation of the Bolivarian Republic of Venezuela states: according to Venezuelan law, all acts of a governmental authority must be justified. The absence of reasoning (which is the declaration of the circumstances or de facto or de jure reasons or circumstance that have led to the issuance of the act), implies not only a defect of form, but also, and primarily, that it is invalid. Reasoning is a requirement by the State of law and as such must be required as a principle in all acts of a governmental authority. If when indicating the circumstances taken into account to approve the acts of a governmental authority revealed a concrete and precise relationship between the cause and the measure adopted, the requisite for such acts to be well reasoned must be considered as satisfied.

“Furthermore, the Bolivarian Republic of Venezuela, all the Organs of the National Public Administration and Entities of the Decentralized National Public Administration, must be in line with their activities and the provisions contained in the Organic Law on Administrative Procedures which, in Article 7, defines acts by governmental authorities as any general or specific declaration issued in accordance with the formalities and requisites established in the law by the organs of the public administration; and in Article 9 thereof establishes that specific administrative acts must be reasoned and to that effect refers to the legal grounds and facts that support such acts.

48

“Therefore even though Article 73 of the Partial Reform of the Public Tenders Law (DFLRPLL) does not specifically state what is meant by a justified decision or what requirements would justify a selective bidding process, in order to issue a reasoned administrative act, the highest authority must adhere to the provisions of the Organic Law on Administrative Procedures as the legislation that governs administrative acts and procedures.

“Lastly, the appropriate authority referred to in the law is none other than the highest authority of the contracting entity or agency, according to the provisions of Article 88 of the Partial Reform of the Public Tenders Law (DFLRPLL). In view of the foregoing, the Delegation of the Bolivarian Republic of Venezuela considers that the Committee’s comment on the advisability of indicating in the DFLRPLL what is means by a reasoned decision, what is meant be sufficient justification, which would be the requirements that justify that it is in order, is unnecessary, and suggests that the paragraph and the corresponding recommendation be eliminated.”

If the suggestion by the Delegation of Venezuela is accepted, the text struck through below would be eliminated, together with the corresponding recommendation.

The Committee notes that Article 73 of the DFLRPLL states that a selective bid is applicable in the cases indicated in paragraphs a), b) and c), provided that the highest authority of the procurement agency or entity submits a record to justify this method. However, the Committee is concerned that there is nothing to define what is meant by a reasoned decision, or what constitutes sufficient justification, what are the requirements that justify that it is in order, or who would be the authority responsible for approving this justification. The lack of such a procedure could make the decision vulnerable to a large measure of discretion on the part of the highest authority of this contracting agency or entity when they have to make subjective decisions, and that this is contrary to the principles of openness, equity and efficiency as set forth in the Convention. To strengthen observance of these principles, the country under review might consider revising the legislation and defining a procedure to be followed in such cases. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2, Recommendation 1.2.1 (b) of this report).


“In relation to the comment by the Secretariat, expressed in the following paragraph, the Venezuelan delegation reproduces the consideration made regarding the previous paragraph, regarding the motivation behind the selective bid. It is therefore recommended that the paragraph and the corresponding recommendation be eliminated.”


The Committee also notes that Article 88 del DFLRPLL states that a direct award is applicable in a number of cases, regardless of the amount of the contract, if the highest

49

authority of the contracting agency or entity provides a reasoned decision that sufficiently justifies that it is in order. As in the case covered in the previous paragraph, there is nothing that defines what is meant by a reasoned decision to justify that the method chosen is in order, what constitutes sufficient justification, or the requirements that justify that it is in order, nor who would be the authority responsible for approving this justification. The lack of such a procedure leaves the decision to be made largely at the discretion of the highest authority of the contracting agency or entity which could make a subjective decision that would go against the principles of openness, equity and efficiency as set forth in the Convention. To strengthen observance of these principles, the country under review might consider revising the legislation and defining a procedure to be followed in such cases. The Committee will formulate a recommendation in this resgard. (Chapter III, Section 1.2, Recommendation 1.2.1 (c) of this report).

As regards access to information on procurement processes, the Committee notes that Article 108 of the DFLRPLL establishes that all bidders who participate in a procedure governed by that Law shall be entitled to examine, read or copy any documents contained therein., once the procedure has concluded, obtain certified copies of them, regardless of the result. Progress has been made in that regard. However, the same article exempts documents declared as confidential in accordance with the Organic Law on Administrative Procedures.

The Committee notes with regard to the previous paragraph that Article 59 of the Organic Law on Administrative Procedures states that at any stage in the procedure the interested parties and their representatives are entitled to examine, read or copy any documents in the file, and obtain certified copies of them. Exceptions to this rule are documents classified as confidential by a hierarchal superior. Such documents shall be kept in a separate section of the file. The decision to classify a document as confidential must be based on a reasoned decision.


“In relation to the comment by the Secretariat, expressed in the following paragraph, regarding what constitutes a motivated act for declaring a document as confidential, the Delegation of the Bolivarian Republic of Venezuela reproduces the consideration regarding the reasoning behind a selective bid, expressed in previous comments. It is therefore suggested that the paragraph be eliminated.”


The Committee points out that the afore-mentioned Article 59 of the Organic Law on Administrative Procedures does not explain what is meant by a reasoned decision or what procedure must be followed to classify a document as confidential, which leaves it largely to the discretion of the hierarchal superior to decide which documents are to be put into a separate section of the file so that the public does not have access to them. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation (d) of this report).

50


“Regarding the Secretariat’s comment indicated in the following paragraph, the Delegation of the Bolivarian Republic of Venezuela considers that this paragraph is unnecessary since Article 19 of the Organic Law of Administrative Procedures expressly states the cases where the absolute nullity of the Administration's acts will be declared. It is, moreover, common knowledge that acts that whose absolute nullity is declared shall be considered as if they were never issued and their effectiveness will immediately be taken back to the moment at which they were issued.

“In the case of acts that can be annulled or are subject to relative nullity, if the defect only affects part of the administrative act, inasmuch as the rest of it is independent, that part is completely valid. Therefore if a contract is declared void, depending on the grounds for declaring the nullity, the provisions of Articles 19 or 21 of the Administrative Procedures Law (LOPA) will be applied. It is therefore suggested that the paragraph and the corresponding recommendation be eliminated.”

To that effect the Secretariat transcribes below Articles 19 and 21 of the Administrative Procedures Law (LOPA) which were cited by the Delegation of Venezuela:

“Article 19: Administrative acts will be rendered absolutely null in the following cases:1. If this is expressly provided for in a constitutional or legislative provision;2. In the case of a resolution on a case already definitively ruled after a final decision was reached and which gave rise to specific rights, unless expressly authorized by the Law,3. If the execution of their provisions is impossible or illegal; and 4. If they were issued by manifestly incompetent authorities, or with total or partial disregard for current legal process.

“Article 21: If in the provision of the preceding Article the defect only affects part of the administrative act, the rest of it, insofar a it is independent, will be completely valid.”

Ecuador suggests that the paragraph be eliminated, since it is considered unnecessary “in that one of the effects of the nullity is that things return to their former state, so if a contract is declared void, the natural logical outcome would be that a new procurement process would be initiated.”

If the suggestion made by Venezuela and Ecuador is accepted, the following text that is struck through below would be eliminated, along with its corresponding recommendation.

Finally the Committee wishes to point out that Article 113 of the DFLRPLL stipulates the cases in which the contracting entity can declare a contract void. However, neither the Law nor its Regulations throw any light as to what procedure must be followed once the contract has been declared void. For example, if it is going to be awarded directly to another contractor or if a new selection procedure is to be selected. The Committee considers that in order to foster the principles of openness, equity and efficiency, the country under review might define what procedure should be followed in such cases. The Committee will formulate a

51

recommendation in this regard (Chapter III, Section 1.2., Recommendation 1.2.5 (a) of this report).

NOTE BY THE SECRETARIAT #42: Ecuador suggests eliminating from the following paragraph the text: “would benefit from having a stronger National Procurement Service as the central and independent authority governing government procurement” and replacing it with “consider the advisability of creating or determining a central authority to govern public procurement.”

If Ecuador’s suggestion is accepted, the text would be revised accordingly.

The Bolivarian Republic of Venezuela formulates the following observation:

“In our response to the Questionnaire, pages 55 and 56 we point out that the: “purpose of the National Register of Contractors is to centralize, organize and supply basic information, in a manner that is efficient, reliable and timely, so that it can be qualified on the basis of its legal and financial content and the classification of contractors by specialty.”

“Therefore, in accordance with Article 29 of the Decree Law on Tenders and Article 2 of Decree 4,,032, it must:

“Undertake the ongoing systematization, organization and consolidation of the data provided by the persons who registered and by the entities governed by this Decree-Law.

Provide the public and private entities with information on the persons registered.

Prepare and publish a directory containing the qualification and classification of contractors by specialty.

As the contractors to supply the documentation required under this Decree-Law and its regulations, so that it can be identified , qualified in accordance with its legal and financial content and classified by specialty.

Agree or deny their pursuant to the terms of this Decree-Law.

Decide on the legal and financial qualification and classification by specialty, in keeping with the standards and procedures laid down by the National Procurement Service.

Agree or deny the issuance of the certificate of registration, having ascertained compliance with the requirements under the law and the regulations to the law.

Take any other action indicated in the Law and its regulations.”

“We therefore suggest that the following paragraph and the subsequent recommendation be eliminated.”

The Secretariat would like to point out that Article 29 of the Decree-Law on Tenders mentioned above refers to the attributions of the National Register of Contractors and not to the National Procurement Service, and the text of the heading of Article 29 cited by Venezuela, which provides the content of the functions listed is as follows:

52

“Article 29: The purpose of the National Register of Contractors is to centralize, organize and supply basic information, in a manner that is efficient, reliable and timely, so that it can be qualified on the basis of its legal and financial content and classified by specialty, under the terms stipulated in the Decree-Law and its regulations. It must therefore: ( . . . )”

With regard to Decree 4,032 cited by the Delegation of Venezuela, the Secretariat wishes to recall that only the information received at November 10, 2006 was taken into account, at which time this document was not available.

If Venezuela’s suggestion is approved, the text struck through below would be eliminated, together with the corresponding recommendation and the amendment suggested by Ecuador would not be made either.

- Secondly, the Committee notes that with regard to the governing or administrating authorities of the systems and control mechanisms, the country under review indicated in its response that the governing authorities responsible for oversight of the procurement of goods and services are the President of the Republic, the highest authorities of the National Public Branches of Power in charge of disbursements, the bid commissions, the National Procurement Service and the National Register of Contractors. The Committee believes that since there does not appear to be central body that administers the oversight systems, the country under review would benefit from having a stronger National Procurement Service as the central and independent authority governing government procurement. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.2 (a) of this report).


“Even though we do not agree at all with the contents of the following paragraph, because we feel that it exceeds the requirements o the questionnaire, Article 62 of the Constitution of the Bolivarian Republic of Venezuela states that: “All citizens are entitled to participate freely in public affairs, directly or through their elected representatives.

“Participation by citizens in the training, implementation and control of public management is a necessary means for achieving a level of involvement that would guarantee their full individual and collective involvement. It is the State’s obligation and society’s duty to help generate the most favorable conditions to put this into practice.”

“In this sense, all the legal instruments passed after the Constitution came into force, establish mechanisms and systems that allow citizens to participate in public affairs, and create structures in the various State entities, such as Citizens Advice Bureaus, Social Control Offices, Community Councils, among other, in order to guarantee participation by the country’s citizens. In view of this, it is suggested that the following paragraph and the corresponding recommendation be eliminated.”

If Venezuela’s suggestion is accepted, the text struck through below would be eliminated, as would the corresponding recommendation.

53

The Committee also notes that both the DFLRPLL and its Regulations lack a system that allows civil society to monitor procurement processes to complement the institutional oversight mechanisms provided for in the legislation. Since there are a number of well-established mechanisms through which civil society can monitor procurement processes, such as qualified citizen ‘watchdogs,’ a comprehensive effective and efficient oversight system would be very beneficial. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.1 (b) of this report).


“With regard to the next two paragraphs, the Secretariat points out that “the reasons that render certain contracts confidential for reasons of State security is not defined, nor is there any mention of the procedure that must be followed to classify a contract as such. Neither has the Committee found that the scheduling of goods, services or works procurement must be reported to any other entity; in fact there appears to be a total lack of oversight in these cases.” Clearly this is a matter that will be hard to find in the Public Tenders Law or its regulations, since State security and defense are governed by the Organic Law on the Security of the Nation, published in Official Gazette Nº 37,594 of December 18, 2002; the Organic Law on the National Armed Forces, published in Official Gazette Nº 38,280 of September 26, 2005, which were not attached to the response to the Questionnaire in that they were not considered relevant thereto. However, the Organic Law on the Office of the Comptroller General of the Republic and Article 68 of the National Fiscal Control System, which was attached to that response states that “Expenses earmarked for State security and defense shall be limited to payments for intelligence operations undertaken by the State security bodies, in the country and in the foreign service; and for border protection activities and movements of military units, in the event of internal or external conflicts or serious disturbances that endanger the peace of the Republic. Chapter II of the Regulations to the Organic Law of the Office of the Comptroller General of the Republic states: “Expenses earmarked for the security and defense of the State, and therefore subject to the control provided for in Articles 36 and 37 of the Organic Law on the Office of the Comptroller General of the Republic; appropriations for expenses for intelligence operations undertaken by State security bodies, both in the country and in the foreign service, as well as appropriations for border protection activities and military operations required to guarantee the defense of the nation .” It should be mentioned that such expenses are subject to control, both by the Office of the Comptroller General of the National Armed Forces, and by the Office of the Comptroller General of the Republic. Since these expenses are for “Security and Defense”, their programming is subject to a degree of reservation and cannot be treated ordinarily. Therefore we suggest that the following two paragraphs and the corresponding recommendation be eliminated.”

If Venezuela's suggestion is accepted, the text struck through below and the corresponding recommendation would be eliminated.

- Third, with respect to the Register of Contractors, the Committee notes that Chapter II of the DFLRPLL creates the Register of Contractors, defines its functions and establishes its procedures. The Committee notes that Article 23 made it compulsory that entities subject to the provisions of the DFLRPLL submit to the National Procurement Service its

54

procurement program for goods, services and works. However, the Committee sees that this does not apply to contracts classified as confidential for reasons of national security.

The Committee further notes that the reasons that render certain contracts confidential for reasons of national security is not defined, nor is there any mention of the procedure that must be followed to classify a contract as such. Neither has the Committee found that the scheduling of the procurement of goods, services or works for reasons of national security must be reported to any entity; in fact there appears to be a total lack of oversight in these cases. The Committee considers therefore that the country under review could consider making the necessary amendments to define what entity should govern these types of procurement. This would foster the principles of efficiency contained in the Convention. The Committee will formulate recommendations in this regard. (Chapter III, Section 1.2., Recommendation 1.2.2(c) and (d) of this report).


“In the following paragraph the Secretariat “considers that the State under review could define more precisely what is meant by highly specialized services.” To that effect we must point out that the generally accepted meaning of the term “highly specialized” comes from the definition of “specialty” given in the Dictionary of the Royal Academy of Spanish (Diccionario de la Real Academia Española - DRAE) which links it to a “Branch of a science, art or activity whose purpose is a limited part thereof, of which the people who cultivate them have very precise knowledge or skills,” thus, those services, indicated in Article 36 of the Partial Reform of the Public Tenders Law (DFLRPLL), will be those that are provided by persons who have such “knowledge or skills” and not others. As regards the term “sporadically”, the DRAE is specific when it indicates “|| 2. Refers to a thing: Occasional, not ostensibly linked to former or consequent events.” Therefore, said Article 36 refers to the needs for services that are rarely required but that must, nevertheless, be provided for in the law should the need arise. We therefore suggest that the following amendment be made to the paragraph and that the corresponding recommendation be eliminated.”

If the suggestion by the Delegation of Venezuela is accepted, the following paragraph would be revised as follows.

The Committee points out that Article 36 of the DFLRPLL indicates that it will not be necessary for contractors to register on the National Register of Contractors in the case of international bidding processes, scientific or artistic works or infrequently used highly specialized services. The Committee considers that the country under review could be more precise in defining what is meant by highly specialized services in order to avoid leaving this to the discretion of the contracting authority. It might consider creating a register for these kinds of contracts, particularly in the case of international invitations to tender. The Committee will formulate recommendations in this regard. (Chapter III, Section 1.2., Recommendation 1.2.3 (e) and (f) of this report).


“With regard to the Secretariat’s comment in the following paragraph, the Organic Law of Administrative Procedures is the law is applied to administrative procedures in the absence of

55

provisions on the matter in special laws. Therefore contractors who were denied registration may challenge the decision as provided for in Chapter II of that Law which, in Article 85, as already mentioned, confers upon interest parties the right to file the remedies indicated therein against any administrative proceeding that puts an end to a procedure, prevents it from continuing, prevents a proper defense or determines in advance that it is final, if such an act harms the subjective rights or legitimate personal and direct interests of the parties. We therefore suggest that the paragraph and the corresponding recommendation be eliminated.”

If the suggestion made by Venezuela is accepted, the text struck through below would be eliminated, as well as the corresponding recommendation.

Lastly, the Committee notes that there does not appear to be any way for contractors who are not allowed to register to challenge the decision. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.5 (b) of this report).


“In the next two paragraphs the Secretariat points out that “…the Committee is not aware that up to now the DFLRPLL has published any regulations governing the subject of publications, or that an official publication has been created for that purpose …” and that “… the Committee considers that the State under review could consider using modern IT media such as the Internet for these purposes ….” So, the fact that a Regulation through which an entity is created to publish tenders has not been issued, does not mean that they are not being published, under the terms of Article 60 of the Partial Reform of the Public Tenders Law (DFLRPLL). Moreover, not only is this information published in the newspapers, but it is also posted on the Internet, on the websites of the different state entities that issue invitations to tender, and also on the page of the National Procurement Service. It is therefore suggested that those paragraphs and the corresponding recommendations be eliminated.”


- Fourthly, with regard to electronic and information systems for government procurement, the Committee has noted that Article 60 of the DFLRPLL provides that processes related to staff recruitment must be announced twice a week on the dates stipulated by the regulations governing the matter. They must also be advertised in a major national newspaper until an official publication is created for that purpose. However, the Committee is not aware that up to now the DFLRPLL has published any regulations governing the subject of publications, or that an official publication has been created for that purpose. Likewise, the country under review would benefit from the use of modern computer-based methods such as the Internet to publish this information. The Committee will formulate recommendations in this regard. (Chapter III, Section 1.2. Recommendation 1.2.3 (a) and (b) of this report).

The Committee also notes that Article 67 of the DFLRPLL states that new general bidding processes, including international invitations to tender, must be published in a

56

major national newspaper. The Committee considers that the State under review could consider using modern means of communication such as the Internet for these purposes. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.3 (c) of this report).


“The Delegation of the Bolivarian Republic of Venezuela does not share the opinion of the Secretariat’s expressed in the following paragraph, because Decree 1417 provides for means to settle any controversies and disputes that ma arise between the parties. Examples are: Article 4 whereby after the main document is signed, the parties can enter into any agreements necessary to clarify or change the contents of the agreement or the technical document or to determine any other circumstance not foreseen therein. Article 21 regulates matters that paralyze the Contracting Entity if the Contractor fails to comply with the provisions of Article 20 regarding the staff that must continue to undertake the works. Article 34 regulates modifications or changes to the works without the consent of the Contracting Entity. Article 36 regulates matters concerning emergencies affecting the works. Article 39 regulates matters regarding the Contracting Entity’s obligation to pay compensation to Contractors for works that are paralyzed because a permit was not issued. Article 59 deals with the settlement of disputes between the Contracting Entity and the Inspecting Engineer. Articles 59 and 60 with the delay in the payment of valuations. Article 62 with price variations that affect the value of the works: Article 63 to wage and salary variations. Article 65 with variations in the price of materials.”

If Venezuela's suggestion is accepted, the text struck through below would be eliminated, together with the corresponding recommendation.

- In the fifth place, as far as public works contracts are concerned, the Committee notes that Article 9 of Decree No. 1,407, “General Conditions for the Procurement of Public Works,” regarding legal competence, states that any queries, controversies or complaints arising in relation to the contract that cannot settled by the parties by mutual agreement or in the manner foreseen in the Decree, shall be settled by the appropriate courts of the Bolivarian Republic of Venezuela, pursuant to law. The Committee considers that the country under review could consider the possibility of allowing for an administrative recourse or challenge for these type of cases, before a specific commission or entity for this type of administrative appeal, and that there should also be access to a second level of appeal in order to foster the principle of equity contained in the Convention. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.5 (c) of this report).

- In the sixth place, with regard to the procedures for selecting contractors, the Committee observes that the Partial Regulations of the DFLRPLL foresee that in order to make a direct award in accordance with the provisions of Articles 87 and 88 of the DFLRPLL, the awarding entities could allow private competitive bidding and price consultation mechanisms, while Articles 30 and 31 define how these mechanisms would be used.

The Committee also notes that Article 29 of the aforementioned Regulations states that whenever possible, in the case of direct awards, the contracting entity may give preference to private competitive bidding and price consultation mechanisms, in that order. This article adds that the

57

procurement unit must justify its choice of successful bidder through a motivated decision indicating the reasons, for not using the procurement mechanisms available, if applicable.


“We do not agree with the following paragraph since the mechanisms for selecting contractors are established in Article 29, 30 and 31 of the Partial Reform of the Public Tenders Law (DFLRPLL), and these are private tenders and price consultation. We therefore suggest that it be eliminated together with the corresponding recommendation.”

The Secretariat wishes to clarify the fact that the paragraph in question refers to the criteria and not to the mechanisms for selecting contractors.


However the Committee points out that in none of these cases are the criteria for selecting contractors through a direct award defined. In order to continue fostering the principles of openness, equity and efficiency, the Committee feels that the country under review could consider defining criteria to select this type of contractor. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.4 of this report).


“As pointed out by the Secretariat, Article 102 of the Decree on the Partial Reform of the Public Tenders Law states that the decisions issued by the highest authority of the contracting entity or National Procurement Service are the last recourse to administrative action and can only be appealed against through an administrative resource pursuant to the Administrative Procedures Law (LOPA).

“The National Public Administration and the Decentralized Public Administration, the State and Municipal Administrations, the Office of the Comptroller General of the Republic and the Office of the Attorney General of the Republic are subject to the provisions of this Law, and in the case of the last two, insofar as it is applicable. The administrative procedures contained in special laws take preference over the ordinary procedure envisaged in this Law in terms of their application with respect to those aspects that fall within their purview, but in the absence of procedures, the administrative entity must enforce the provisions of this Law..

“This is why, with regard to appeals against administrative acts related to the process for selecting contractors for the procurement of goods, execution of works and provision of services other than labor and professional services, the applicable law is the Organic Administrative Procedures Law.

“Article 85 grants interested parties the right to file appeals for reconsideration, appeals to a higher authority and appeals for review against any administrative proceeding that puts an end to a procedure, prevents it from continuing, prevents a proper defense or determines in advance that it is final, if such an act harms the subjective rights or legitimate personal and direct interests of

58

the parties. Such remedies must be brought within the term and under the conditions set forth in the legislation.

“Article 95 of the Administrative Procedures Law (LOPA) stipulates that appeals for the reconsideration of any specific administrative act are in order and must be made to the official who issued the act. If the act does not put an end to the administrative procedure, the body before which the remedy is brought must rule thereon within the term established by the law. No further appeals may be brought against this decision.

“Articles 95 and 96 of the Administrative Procedures Law (LOPA) provide that an appeal may be filed with a higher administrative authority when the lower authority decides not to amend the act it issued in the manner requested in the appeal for reconsideration. The interested party may file an appeal with a higher administrative authority directly with the Minister, and tin the case of decisions by subordinate organs of autonomous institutes, it may the appeal with their higher organs. Appeals may be filed with a higher administrative authority against the decisions of higher administrative organs and these remedies may be filed with the respective Minister, unless otherwise provided for in the law.

“In the case of appeals for revision, in accordance with Articles 97 and 98 of the Administrative Procedures Law (LOPA), these recourses are filed against firm administrative acts and may be brought before the respective Minister in the cases, with the term and under the conditions set forth in those laws.

“Lastly, Article 93 of the Administrative Procedures Law (LOPA) states that appeals may be brought against administrative decisions when after remedies that put an end to administrative proceedings have been brought, i.e., appeals for reconsideration, appeals to a higher authority and appeals for revision, a decision contrary to the one requested was issued, or a decision was not issued within the corresponding term.

“As can be seen, the Bolivarian Republic of Venezuela does have mechanisms, standards and procedures that guarantee the defense of interested parties against administrative proceedings that they consider detrimental to their legitimate, personal and direct subjective rights. This is why we suggest that the following paragraph and the corresponding recommendation be eliminated.”


- Seventh, in the case of administrative challenges, the Committee observes that Article 102 of the DFLRPLL provides decisions issued by the highest authority of the contracting entity and those issued by the highest authority of the National Procurement Service are the last recourse to administrative action. Therefore the only recourse possible is that provided for in the Organic Law on Administrative Procedures. The Committee considers that the country under review could consider the possibility of allowing for an administrative recourse or challenge for these type of cases, before a specific commission or entity for this type of administrative appeal, and that there should also be access to a second level of appeal in order to foster the principle of equity contained in the Convention. The Committee will formulate recommendations in this regard. (Chapter III, Section 1.2., Recommendation 1.2.5 (d) of this report).

59

NOTE BY THE SECRETARIAT #51: Ecuador proposes the inclusion of the paragraph underlined below:

“In the eighth place the Committee observes that Article 4 of Presidential Decree No. 3,798 on temporary measures for establishing the amounts and categories of contracts reserved for alternative companies that manufacture goods, provide services and execute works, states that contracts whose amounts and categories might affect free competition are declared as reserved for alternative companies. Because this could affect free competition, it would be advisable for the State under review to consider the importance, in the case of this type of contract, of allowing a larger number of bidders to participate, and not restrict it to alternative companies. The Committee will formulate a recommendation in this regard.”

If Ecuador’s suggestion is accepted, this paragraph would be added.

However, Venezuela formulates the following observation:

“We do not share the opinion of the Ecuadorian Expert indicated in the following paragraph, in that:

“The Second Whereas Clause of Presidential Decree 3,798 stipulate the State’s constitutional obligation to protect and promote the participation of alternative companies in order to strengthen the country’s economic and social development through their inclusion in development processes, training, technical assistance and timely financing.

“The Third Whereas Clause states that the adoption of measures that sets margins of preference for the amounts and categories of reserved contracts, is a means of promoting and developing alternative companies to compensate for adverse or unfavorable conditions that affected them at the time when the Decree-Law was passed.

“This Decree shall remain in force for 2 years from its publication in the Official Gazette, in other words until August 2007.”

If Venezuela’s recommendation is accepted, the paragraph suggested by Ecuador would not be incorporated.

- Lastly, the Committee points out that the legislation on public procurement is split among various different decrees, partial reforms and other rules and regulations. Hence the Committee considers that the country under review would benefit from consolidating its legislation in a single concise and specific body to make it far easier to access and understand, both for public servants who must enforce the law and for the public who must refer to it. This would lead to a process that is more dynamic and economical, in keeping with the principles of openness, equity and efficiency contained in the Convention. The Committee will formulate a recommendation in this regard. (Chapter III, Section 1.2., Recommendation 1.2.5 (e) of this report).

NOTE BY THE SECRETARIAT #52: Colombia suggests the incorporation of the text of the paragraphs underlined below. The Secretariat points out that if Colombia’s suggestion is accepted, the recommendations would be numbered appropriately.

It is important to note that the principles or criteria for selection that determine the awarding in the selection processes are established solely in the proposals or conditions for each bid and are

60

not legally defined. With the purpose of giving the process more objective and transparent selection criteria, a recommendation will be formulated. (Page 66 of this report.)

With the purpose to make the procurement process more transparent, it is suggested that preliminary bids are published so interested parties may be able to access them and make comments. A recommendation will me made in that regard. (Page 66 of this report.)

Lastly, the Committee considers necessary that the Bolivarian Republic of Venezuela gets a system of information that publish the bidding processes and that all interested citizens be able to consult it. For this reason a recommendation will be made. (Page 66 of this report.)

1.2.3. Results of the legal framework and/or other measures

The Bolivarian Republic of Venezuela, in the results section of its Response to the Questionnaire, makes the following comment:

“Table N° 2 shows the number of public procurement processes for goods, services and works in 2004 and 2005, the amount of money invested per type of process and the share of each type as a percentage of the total amount invested in those processes (equivalent to approximately US$165,142,652.33 and US$2,089,309,261.20 in 2004 and 2005 respectively).”

Table Nº 2. Procurement of goods, services and works expressed in billions of bolivars *

PROCESS/YEAR2004 2005

Number Amount %Numbe

r Amount %

General Bidding (Art. 61 LL) 53 124,345.92 35% 534,078,047.6

9 91%Selective Bidding (Art. 72 and 73 LL) 37 64,578.57 18% 46 88,830.91 2%Public procurements contracts for goods or services through Direct Award selection process (Art. 87 LL), for contracts not exceeding 1,100 tax units. 3,291 10,196.92 3% 3,387 18,373.55 0%Works procurement contracts through Direct Award selection process (Art. 87 LL), for contracts not exceeding 11,500 tax units. 79 10,418.14 3% 266 51,565.47 1%Procurement contracts for goods or services through Direct Award selection process (Art. 88 LL), regardless of the amount of the contract. 86 19,251.26 5% 146 57,375.65 1%Works procurement contracts through Direct Award selection process (Art. 88 LL), regardless of the amount of the contract. 6 1,535.18 0% 88 137,616.41 3%

Temporary Measures contracts 61 124,730.72 35% 68 60,205.22 1%

61

(Decree 1892 dated July 30, 2002; Decree 2876 dated April 6, 2004) and (Decree 3798 dated August 1, 2005; Decree 4000 dated October 17, 2005)

Totals 3,613 355,056.70 100% 4,054

4,492,014.91 100%

*N.B.: Does not include information on states and municipalities

*Source: National Assembly, Ministry of Foreign Affairs, Ministry of the Interior and Justice, Office of the Attorney General of the Republic, Office of the Public Prosecutor, Ombudsman’s Office, Supreme Court of Justice and Office of the Comptroller General of the Republic

The Inspection Section (Gestión Fiscalizadora) of the 2005 Management Report (Informe de Gestión) of the Office of the Comptroller General of the Republic, contained the following on the general situation of the agencies and entities evaluated:

“Based on the results of the inspections carried out we must reiterate what has been expressed in previous years regarding the continued existence of a series of failures, shortcomings, deeds, acts and omissions that adversely affect public management, and in particular the increase in the number of cases which occur due to the conduct of officials whose values are not in keeping with public ethical values and who are in charge of managing public resources. The following is what we consider to be some of the most relevant aspects, to facilitate a better understanding of the situation:

“The Central government’s assets are considerably eroded by the loss in revenue from unpaid, uncharged or uncollected taxes, duties and contributions, undelivered receipts, missing assets, remaining portions of funds pending reimbursement, duties pending collection, duties pending with a credit balance, deficit in fiscal credit balances, missing stamp duty, purchases made without following the procedures laid down in the Public Tenders Law and misappropriation of public funds, as a result of which objections on 20% of the accounts examined were filed. Other issues included delays in the execution of public works. One example is the construction of two subsystems for wastewater collection as part of the Lake Valencia Clean-Up Project scheduled for completion within a two-year period which began on September 26, 1990, and at the time of the inspection (2005) was still unfinished. Another example is the Program to Modernize the National Hydrometeorological Measurement and Forecasting System, completion of which as of April 30, 2005 was already delayed by 16 months. In 80% of cases, contracts are not ready on time and cost up to 195% more than estimated21.”

( . . . )

“It is important to point out the fact that the National Executive has been giving the fight against corruption the importance it deserves, incorporating it in its strategic guidelines, which coincide with the Office of the Comptroller General’s vision of corruption. We call this type of corruption social terrorism, since mismanaged funds and resources that are diverted from the purpose for which they were envisaged, are detrimental to the citizens in general and the poorest and most vulnerable sectors in particular. This is why coordinated action must be undertaken among all the public branches of government, and citizens (who have a fundamental role to play in this struggle, because of their ability to exercise oversight on behalf of society and take part in public affairs), in order to keep on strengthening the educational and preventive work that enables all of

21 See page 1 of the Report of the Office of the Comptroller General of the Republic.

62

us to be truly responsible for seeing that public funds are used correctly for the benefit of the country22.”

Taking in account the information provided by the Bolivarian Republic of Venezuela in its Response to the Questionnaire, as well as the information contained in the report of the Office of the Comptroller General of the Republic quoted above, the Committee considers that the country under review could benefit from undertaking concerted action with the branches of government and citizens in order to strengthen the educational and preventive work needed in order to enforce the corresponding legislation, thereby ensuring that public tenders will become the norm and not the exception in government procurement. The Committee will formulate a recommendation in this regard. Chapter III, Section 1.2., (Recommendation 1.2.1 (e) of this report).

NOTE BY THE SECRETARIAT #53: The Bolivarian Republic of Venezuela requests that the text as it appears below should be revised. If Venezuela’s suggestion is accepted, the text underlined below would be added.

Lastly, the Committee notes that the information included in Venezuela’s response to the questionnaire regarding statistics on procedures for selecting contractors, does not include any data for 2006, and it is limited to only 8 public agencies, which does not make it possible to undertake a comprehensive evaluation of the results for that period. (See General Recommendation 4.2)

2. SYSTEMS FOR PROTECTING PUBLIC SERVANTS AND PRIVATE CITIZENS WHO, IN GOOD FAITH, REPORT ACTS OF CORRUPTION (ARTICLE III (8) OF THE CONVENTION)

2.1 Existence of provisions in the legal framework and/or other measures

The Bolivarian Republic of Venezuela has a set of provisions related to the above-mentioned systems, among which the following should be noted:

- Article 55 of the Constitution provides that everyone is entitled to receive protection by the State through its citizen safety agencies regulated by law, from situations that affect or constitute a threat, vulnerability or risk to the physical integrity of individuals, their properties, the enjoyment of their rights or the fulfillment of duties. It further states that the participation by citizens for purposes of prevention, citizen safety and emergency management shall be regulated by a special law.

Statutory and other legal provisions, among which the following should be noted:

- The Anti-Corruption Law (LCC) whose purpose in accordance with Article 1 is to set the standards that will govern the conduct of the persons subject to its provisions, guarantee the proper and transparent management of public resources based on the principles of honesty, transparency, participation, efficiency, efficacy, legality, accountability and responsibility laid down in the Constitution of the Bolivarian Republic of Venezuela, and the criminalization of acts committed against the common good and the sanctions applicable to anyone who infringes those provisions and whose acts, deeds or omissions cause harm to public property; and Chapters I to IV of Title IV list the crimes against public property and the administration of justice that can be reported by public servants and private individuals.

22 See page 9 of the Report of the Office of the Comptroller General of the Republic.

63

- Article 81 of the Organic Law of the Office of the Public Prosecutor (LOMP) states that victims of a criminal action shall receive protection as soon as they are identified as such by the appropriate entity. The protection may be extended after the trail ends for as long as this is considered prudent.

Articles 82 to 85 state that the Senior Prosecutor, through the Victim Protection Office or at the request of the interested party, may ask the competent judge to take whatever steps are necessary to protect the victim and his freedom or material assets. Depending on the degree of risk or danger, the judge shall take the measures necessary to preserve the identity of the victim and the victim’s home, profession and place of work, without affecting the suspect’s right to a defense. Protection may be extended to include the victim’s spouse or the people who live with the victim and the victim’s ascendants, descendents, brothers, sisters and relatives within the second degree. The victim protection office shall provide the following services: protection, advice, support, information and education on their rights, to facilitate his appropriate and timely participation in the criminal process. The Attorney General will issue the regulations that shall govern this matter.

Article 86 provides that protection for witnesses and experts may be arranged in the cases envisaged in the previous articles with respect to victim protection.

- Book 2 of the Organic Code of Criminal Procedure (COPP) regulates the general aspects of complaints, among which the following articles should be noted:

Article 285 states that anyone who is aware that a punishable offence has been committed may report it to a prosecutor in the Office of the Public Prosecutor or a criminal investigations police entity.

Article 286 provides that complaints may be filed verbally or in writing and must state the name and address of the person filing the report, a description of the circumstances of the offence, an indication of the person who committed the offence, the people who witnessed or learned of it, if known by the reporting person. In the case of a verbal complaint, a report will be drawn up in the presence of the complainant who will sign it together with the official who records it. The written complaint will be signed by the complainant or an authorized proxy. If the complainant cannot sign it, he shall affix his fingerprint thereto.

Article 287 provides that it is compulsory for the following persons to file a complaint: private individuals who in the course of their employment discover that a punishable offence has been committed if failure to do so is punishable under the Criminal Code or any applicable special law thereto; public officials who in the course of their employment realize that a punishable offense has been committed; physicians or health professionals who are called upon by virtue of their professional knowledge to assist in cases involving poisoning, wounds or other types of lesion, abortions, or presumed pregnancies, in which case they must inform the authorities.

- Article 25 of the Scientific, Penal and Criminal Investigations Law (LOICPC), empowers the Scientific, Penal and Criminal Police Force to request that the corresponding judge, acting upon its own initiative or at the request of the interested party, grant protect measures to witnesses and experts by preserving their identity, profession or trade, workplace and home, without infringing the principles of criminal procedure and subject to a prior authorization by the Office of the Public Prosecutor, when it is perceived that a person or his property is in serious danger.

- The Instructions on Complaints (IMD) issued by the Office of the Comptroller General of the Republic states that any citizen who is aware that a public official or private individual is involved in an abnormal deed connected with the handling of public funds or property belonging

64

to entities under the control of the Office of the Comptroller General of the Republic, may file complaints deemed pertinent, provided that there are grounds therefor. They can be reported verbally or in writing.

- Article 1 of the Victim and Witness Protection Law (LPVTDSP), whose purpose is to protect the rights and interests of victims, witnesses and other parties to a legal action, and regulate protection measures inasmuch as their scope of application, modalities and procedures are concerned.

Article 4 of the Law defines as recipients of the protection provided therein as anyone who is in danger of being a direct or indirect victim, a witness, expert, official of the Office of the Public Prosecutor or the police forces, and other main or secondary actors involved in a proceeding. It adds that these protection measures may be extended to include relatives within the fourth degree of consanguinity or second of affinity, and anyone else who requires such protection by reason of their immediate relationship, as indicated in the previous paragraph.

Article 5 provides that the following shall be considered direct victims under this Law: anyone who individually or collectively has suffered any kind of physical or psychological harm, financial loss or whose fundamental rights have been fundamentally compromised as a result of actions or omissions that infringe the criminal legislation in force. Likewise, families within the fourth degree of consanguinity or second of affinity shall be considered indirect victims, or persons under their responsibility, who have an immediate relationship with the direct victim, and persons who were harmed by going to the aid of a victim in danger or trying to prevent the victimization.

Article 7 states that the protection and assistance referred to in this law must be provided by the appropriate jurisdictional bodies, the criminal investigations police force, the bodies with special responsibility for criminal investigations and the criminal investigation support agencies, in their respective spheres of competence, at the request of the Office of the Public Prosecutor; and that all public and private entities, agencies and dependencies, if applicable, are obliged to cooperate with the Office of the Public Prosecutor as requested by it or the competent jurisdictional body to apply the protection measures foreseen in that Law.

NOTE BY THE SECRETARIAT #54: Colombia suggests that the term “órgano” be replaced by the term “conducto”. (This revision only affects the Spanish version.)

However, the delegation of Venezuela points out that this revision would not be in order since the text, as it originally appears, was copied from the law and this change would have to be made through a legal reform.

Article 8 states that notwithstanding any other necessary measures undertaken with other appropriate authorities to protect victims, witnesses and other parties in the proceeding, and to safeguard their health, security and wellbeing, including their psychological state and social adaptation while the danger persists, the Office of the Public Prosecutor shall request to the National Executive, through the appropriate ministries, for assistance in order to effectively guarantee the following measures:

o Provide the necessary protection for the physical integrity of the person at risk and the family that lives with him.

o Provide the documentation he needs to establish a new identity.

65

o Help him get a job.

o Provide other services necessary to assist him and if applicable the family that lives with him.

o Provide the protected person, and if necessary the family that lives with him, with a dwelling or room.

o Provide transportation of the furniture and personal property of the protected person and, if applicable, for the family that lives with him, if they must move to a new home.

o Provide medical and psychological care for the protected person and, if necessary, to the family that lives with him.

o Provide him, and if necessary the family that lives with him, support so that they can fit into the education system, consistent with some of the measures under this Law, when a move to a new home is necessary.

o Provide support in relation to training, education and dissemination of everything connected with the protection of victims, witnesses and other parties in the proceeding.

The same article adds that the National Executive shall adopt whatever mechanisms are necessary so that the appropriate ministries can provide the cooperation envisaged in this Article; and will ensure that the necessary financial resources are assigned in the budget of the appropriate ministries, subject to compliance with the legal provisions in force.

Article 15 provides that the executive, through the Police Coordination Office of the ministry responsible for internal and judicial matters, shall set up an emergency hotline for the victims, witnesses and other parties in the proceeding, which will operate twenty four hours a day and be manned by specially trained staff. In the cases envisaged under this Law, all victims, witnesses and other people involved in the proceeding must be made aware, from the start of the criminal process undertaken by the people in the administration of justice, on the existence and usefulness of this emergency hotline. The Office of the Public Prosecutor shall be informed monthly, through the Directorate of Senior Prosecutors, of any calls received on this line.

Article 16 states that any support, service or protection given to victims of crime, witnesses and other parties involved in the procedure shall be provided free of charge and the institutions that must provide such assistance may not ask for any remuneration for their services.

Article 20 provides that the protection measures referred to in this Law are out-of-court and in-court measures.

Article 21 defines the special out-of-court protection measures that shall be applied when the circumstances make this possible and advisable, among which the following are noted:

o Personal or residential custody, through direct surveillance or other security measures, to include the residence of the victim of the crime or protected person, whichever is applicable.

o Temporary accommodation in safe houses or centers.

66

o Financial aid for accommodation, transportation, food, communication, healthcare, moving, job reinsertion, security systems, home refurbishing and other essential expenses, within and outside the country, as long as the beneficiary is unable to finance himself.

o The change of identity shall consist of documentation accrediting a new identity under an assumed name to keep the whereabouts of the protected person and his immediate family confidential.

o Order the perpetrator, suspect or victim not to go near the place where the victim, witnesses or other parties involved in the case are found.

Pursuant to Article 23, the general and necessary protection measures that the Office of the Public Prosecutor will request, once the provisions of Article 16 of this Law have been complied with, are as follows:

o During the criminal proceeding, preserve the identity of the victim or individuals involved in the case, as well as their profession and their workplace, whether or not the counsel for the defense of the suspect or the accused agrees with this measure.

o The proceedings must not state the first or last names, address, place of work or profession, or any other information that could be used to identify them. Instead a nomenclature, code or automated mechanism could be used.

o When they must be present at a proceeding, steps must be taken to prevent them from being recognized.

o The address for serving citations and summons shall be the headquarters of the judiciary in question which will forward them confidentially to the addressee.

o Any other measure deemed fit in order to protect victims, witnesses and other parties in a proceeding, in accordance with Venezuelan legislation.

Article 26 provides, among other things, that victims, witnesses and other parties involved in a proceeding, may ask the prosecutor from the Office of Public Prosecutor or the Senior Prosecutor of the respective judicial district, to be taken under custody to the place where the investigations or trial are to take place and to their home, in official vehicles if they have reason to suspect that their lives or safety are in danger.

2.2 Adequacy of the legal framework and/or other measures

With respect to the legal provisions for protecting public servants and private citizens who in good faith report acts of corruption, the Committee notes that, on the basis of the information available to it, they may be said to constitute a set of measures that are pertinent for promoting the purposes of the Convention.

Notwithstanding, the Committee considers it appropriate to make a number of observations on the advisability of complementing, developing and amending certain legal provisions that refer to those systems:

- First, the Committee notes that Article 81 of the Organic Law of the Office of the Public Prosecutor states that victims involved in a criminal proceeding shall be protected as soon as they

67

are identified as such by the corresponding body and that Articles 82 to 85 of that Law establish the protection measures for these victims, as well as mechanisms for protecting their identity. The Committee also observes that Article 86 extends the possibility of this protection to include witnesses and expert witnesses in accordance with the contingencies established for the protection of victims, which is why the Law on the Protection of Victims, Witnesses and Other People involved in Proceedings (LPVTDSP) was passed.


“In relation to the next two paragraphs, we see that although it is true that the Victim and Witness Protection Law (LPVTDSP) refers to criminal complaints, it is no less true that according to Venezuelan law any act of corruption is a criminal offence and therefore the provisions of the LPVTDSP apply in full in these cases. It is therefore suggested that the two paragraphs below and the corresponding recommendation be eliminated.”


The Committee points out that even though the Law on the Protection of Victims, Witnesses and Other People involved in Proceedings (LPVTDSP) was passed, it refers exclusively to criminal complaints and does not mention threats or any other kind of retaliation that may not be defined as crimes and may be subject to an administrative investigation.

The Committee considers that the Bolivarian Republic of Venezuela could consider introducing amendments to protect people who report acts of corruption from threats or retaliation beyond the aspects related exclusively to the criminal procedures, since not all acts of corruption are necessarily defined as crimes. The Committee will formulate a recommendation in this regard. (Chapter III, Section 2, Recommendation 2.1, ordinal (b) of this report).

- Secondly, the Committee points out that the Law on Scientific, Penal and Criminal Investigations (LOICPC) authorizes the Scientific, Penal and Criminal Police Force to ask a judge to take whatever measures are deemed necessary to protect the identity of the profession, trade, workplace or home of witnesses and expert witnesses when it is perceived that the person or his property may be in serious danger.


“In relation to the following paragraph, we must note that anyone who reports a crime is a witness and as such is subject the benefits established in the Victim and Witness Protection Law (LPVTDSP). We therefore suggest that the following paragraph and the corresponding recommendation be eliminated.”

However, the Committee notes that these protection measures refer to protection of the identity of witnesses and expert witnesses in cases of scientific, penal and criminal investigations, but no mention is made of protecting the identity of persons who in good

68

faith report acts of corruption, particularly given the fact that all not all such acts are defined as crimes and that these cases are often subject to administrative rather than scientific, penal or criminal investigations. Neither has the Committee been able to find in the Organic Code of Criminal Procedure (COOP), or in the Instructions on How to File a Complaint (IMD), issued by the Office of the Comptroller General of the Republic, any provision regarding protection of the identity of persons who in good faith report acts of corruption. The Committee will formulate a recommendation in this regard. (Chapter III, Section 2, Recommendation 2.1 (b) of this report).

NOTE BY THE SECRETARIAT #57: Ecuador proposes the addition of the following paragraph:

“Taking into account that protection instruments are basically limited to acts of corruption related to specific crimes and are primarily designed to protect the physical integrity of complainants, but do not contain provisions to protect the labor situation of complainants in the case of public officials, which would help to achieve the purposes of the Convention by encouraging civil servants to report acts of corruption without the fear that this may affect their job situation. Therefore the Committee considers that there seems to be a vacuum that could be solved if the State under review would consider introducing the necessary reforms in order to establish a more suitable mechanism for this type of case. The Committee will formulate a recommendation in this regard.”

If this suggestion is accepted, the appropriate changes will be made.

NOTE BY THE SECRETARIAT #58: Colombia suggests the incorporation of the text underlined below.

Lastly, the Committee observes that there are no measures to protect public officials in their working environment, such as measures on labor stability or measures designed to prevent retaliation as a result of the complaints filed in cases of corruption. The Committee will therefore formulate a recommendation. (Page 67 of this report)

If this suggestion is accepted, the appropriate changes will be made.

2.3 Results of the legal framework and/or other measures

The Bolivarian Republic of Venezuela, in the results section of its Response to the Questionnaire, makes the following comment:

“Table N° 3 contains figures on complaints received, processed and in process in 2004 and 2005, as well as requests for protection of witnesses, private individual and public servants undertaken during that period. Currently 469 protection measures requested in 2004 are still in process. In other words, the Office of the

69

Public Prosecutor has still not asked that the measure be lifted. The same applies to 411 protection measures requested in 2005.”

Table Nº 3. Systems for protecting public servants and private citizens who in good faith report acts of corruption

TYPE/YEAR 2004 2005

Received In Process Processed Received In Process ProcessedComplaints* 1,353 106 1,236 1,434 121 1,313 Requests for the protection of witnesses, private individuals and public servants. ** 2,053 469 1,584 2,649 411 2,238 Totals 3,406 575 2,820 4,083 532 3,551

*Source: Ethics Council (Republican Moral Council), Ministry of the Interior and Justice, States, Municipalities and Office of the Comptroller General of the Republic.

**Source: Directorate of Protection (“Dirección de Salvaguarda”) of the Office of the Public Prosecutor.

NOTE BY THE SECRETARIAT #59: The Bolivarian Republic of Venezuela requests the modification of the following paragraph to which the underlined text would be added and if this request by Venezuela is accepted, it would read as follows:

“Based on the response to the questionnaire and the comparative table, the Committee points out that even though cannot ascertain which of these complaints refers to the protection of witnesses, private individuals and public officials in different kinds of criminal cases and which refer specifically to reports of acts of corruption reported in good faith, the date provided by the Bolivarian Republic of Venezuela, reveals the existence of a system that guarantees protection for citizens who in good faith report acts of corruption. The Committee also notes that there is no information on 2006. For those reasons this Committee considers that the quality of the information presented by the Bolivarian Republic of Venezuela in its response makes it impossible to make a proper appraisal of the results (See General Recommendation 4.2).”

Ecuador proposes a different amendment to the same text. If the amendment proposed by Ecuador is approved, the underlined text would be added to the original text and it would then read as follows:

“Based on the response to the questionnaire and the comparative table, the Committee cannot ascertain which of these complaints refers to the protection of witnesses, private individuals and public officials in different kinds of criminal cases and which refer specifically to reports of acts of corruption reported in good faith. The Committee also notes that there is no information on 2006. The Committee also notes that there is no information on 2006. For those reasons this Committee considers that the quality of the information presented by the Bolivarian Republic of Venezuela in its response makes it impossible to make a proper appraisal of the results and will thus formulate recommendations to that effect (See General Recommendation 4.2).”

70

The Committee will decide whether to accept one of those two versions or keep the original text drafted by the Secretariat which is transcribed below.

“Based on the response to the questionnaire and the comparative table, the Committee cannot ascertain which of these complaints refers to the protection of witnesses, private individuals and public officials in different kinds of criminal cases and which refer specifically to reports of acts of corruption reported in good faith. The Committee also notes that there is no information on 2006. For those reasons this Committee considers that the quality of the information presented by the Bolivarian Republic of Venezuela in its response makes it impossible to make a proper appraisal of the results. (See General Recommendation 4.2).”

3. ACTS OF CORRUPTION (ARTICLE VI OF THE CONVENTION)

3.1. Existence of provisions in the legal framework and/or other measures.

The Bolivarian Republic of Venezuela has a set of provisions related to the criminalization of the acts of corruption provided for in Article VI(1) of the Convention, among which the following should be noted

With regard to paragraph (a) of Article VI(1):


“Pursuant to the sole derogatory provision of the Anti-Corruption Law (LCC), this Law repeals the Organic Law on the Protection of Public Property (Ley Orgánica de Salvaguarda del Patrimonio Público) published in Official Gazette Nº 3,077 Extraordinary, of December 23, 1982, which, when it came into force, expressly repealed (Article 109), Articles 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 233, 236 and Article 466 (50) of the Criminal Code which contains provisions on crimes against public property. Therefore, it is suggested that all the paragraphs in this chapter in which the repealed articles referred to are cited, should be eliminated and it should be noted that those provisions were not referred to in the Response to the Questionnaire that was submitted by the Bolivarian Republic of Venezuela.”

The Secretariat wishes to point out that, in preparing the Draft Preliminary Report, only the information received up to the November 10, 2006 deadline was considered. As indicated by the Delegation of Venezuela, the information to which it referred was not available at the time.

If Venezuela’s suggestion is accepted, the text struck through below would be eliminated.

In that respect and heeding the observations made by the State under review, the Secretariat suggests that a recommendation to eliminate the repealed articles of the Criminal Code should be formulated in order to avoid confusing anyone who uses it.

- Article 197 of the Criminal Code provides that: “All public officials who, for their own account or that of another, corruptly receive money or the promise of money as a reward for doing something in their official capacity, shall be sentenced to one to two months imprisonment.”

71

- Article 60 of the Anti-Corruption Law (LCC) which states that: “Public officials who force or induce someone to give or promise them or a third party a sum of money or some other benefit or gift not legally due to them, shall be sentenced to two (2) to six (6) years in prison and fined up to fifty percent (50%) of the value of whatever was given or promised.”

Article 61 of the LCC states that: “Public officials who in the course of their work corruptly accept compensation or another benefit for themselves or a third party as a reward for doing something in their official capacity, shall be sentenced to one (1) to four (4) years in prison and fined up to fifty percent (50%) of the money received or promised. Those who provided or promised the money, compensation or benefit shall receive the same punishment as indicated in this Article.”

Article 62 of the LCC states that: “Public officials who for their own account or that of another, delay doing or fail to do something that they must do in their official capacity in the course of their work, in exchange accepting money or another benefit, shall be sentenced to three (3) to seven (7) years imprisonment and fined up to fifty percent (50%) of the benefit received or promised.

“The prison term shall be four (4) to eight (8) years and the fine for up to sixty percent (60%), if the action taken was to:

“1. Confer a civil service position, subsidy, pension or honors, or for the agreement to enter into contracts related to the administration to which the official belongs.

“2. Showing favor or disfavor to one of the parties in an administrative, criminal, civil or any other kind of proceeding.

“If the person responsible for the conduct is a judge and this results in a prison sentence for more than six (6) months, the prison sentence shall be from five (5) to ten (10) years.

“Any third party who was used by a public official to receive or accept the offer of money or another benefit on his behalf, and anyone who gave or promised to give the money or benefit indicated in this Article, shall be sanctioned with the same penalty in each case.”

Article 96 of the LCC states that: “Public officials or employees who have been convicted for any of the crimes provided for in this Law shall be banned from holding a public function and therefore may not hold publicly elected position or any other public office, starting from the time of sentence and up to five (5) years, with the exception of the provisions stated in Article 8323 of this Law, in which case the period established by that rule will be applied.

“The period of disqualification referred to in this article shall be decided by the judge in the final ruling, depending on the severity of the offence.”

23 Pursuant to Article 83 of the LCC, “A judge who fails to or refuses to rule, alleging that this matter is unclear, insufficient, contradictory or non-existent in this Law, , shall be sentenced to one (1) to two (2) years in prison. If the judge acted in his own interest, the sentence shall be doubled. Any judge who infringes this law or abuses his power to benefit or harm a person who has been indicted, shall be sentenced to three (3) to six (6) years in prison.“The Executive Directorate of the Magistracy of the Supreme Tribunal of Justice shall take whatever steps are necessary to dismiss the judge, who may only return to the judicial career twenty (20) years after serving the sentence, provided his behavior was impeccable during that time.”

72

- Article 105 of the Organic Law of the Office of the Comptroller General of the Republic and the National Fiscal Control System (LOCGRSNCF) states that: “The declaration of administrative responsibility in accordance with the provisions of Articles 91 and 92 of this Law is punishable with the fine found in Article 94, depending on the severity of the offence and the amount of damage caused. The Comptroller General of the Republic must decide himself, without any other procedure being necessary, depending on the importance of the offence, whether to suspend the official from office without pay for up to twenty-four (24) months or to dismiss the responsible person. The decision will be executed by the highest authority. Depending on the severity of the offence committed, the official may be disqualified from exercising public functions for a maximum of fifteen (15) years, in which case information must be remitted to the respective human resources department of the entity or agency where the deed occurred so that the pertinent steps can be taken.” ( . . . )

With regard to paragraph (b) of Article VI(1):

- Article 199 of the Criminal Code states that: “Anyone who unsuccessfully tries to persuade or induce a public official to commit one of the crimes foreseen in the previous articles will be fined between one hundred and fifty (150) and one thousand tax units (1,000 U.T.) if the intention was for the official to commit one of the crimes foreseen in Article 197; and half the amount of the penalties stipulated in Article 198 if the intention was for the official to commit one of the crimes foreseen in that article24.”

Article 200 of the Criminal Code provides that: “Whoever manages to corrupt public officials by making them commit any of the crimes foreseen in this Chapter, shall be liable to the same penalties as the employees who were bribed.”

- Article 61 of the Anti-Corruption Law (LCC) states that: “Public officials who in their official capacity receive or accept an offer, for themselves or for another, compensation or other benefit not due to them, shall be sentenced to one (1) to four (4) years in prison and fined up to fifty percent (50%) of the amount received or promised. Anyone who gives or promises the gifts of money or other benefits indicated in this Article shall also receive the same punishment 25 ”.

Article 63 of the LCC provides that: “Anyone who, without achieving their purpose, attempts to persuade or induce a public official to commit one of the crimes foreseen in Articles 61 and 62 of this Law shall be sentenced to six (6) months to two (2) years in prison if the purpose of the inducement was to make the official commit the crime envisaged in Article 61; and if the purpose was to make him commit the crime indicated in Article 62, the penalties are half the amount.”

With regard to paragraph (c) of Article VI(1):

- Article 198 of the Criminal Code (CP) states that: “Public officials who accept or elicit an offer, money or some other benefit, either for themselves or another, as a reward for delaying or not doing something they are required to do in their official capacity, shall be sentenced to three to five years imprisonment. The prison sentence shall be four to eight years if the reward for the action taken was to:

“1. Confer a civil service position, subsidy, pension or honors, or the agreement to enter into contracts related to the administration to which the official belongs.

24 Article 197 of the Criminal Code provides that: “Public officials who, for their own account or that of another, corruptly receive money or the promise of money as a reward for doing something in their official capacity, shall be sentenced to one to two months imprisonment.” 25 Our own underlining.

73

“2. Giving preference or being detrimental or causing harm to one of the parties in a civil court case or to the guilty party in a criminal proceeding

“If the act was the result of a verdict of guilty and the restriction of the individual’s freedom is for more than six months, the prison term will be three to ten years.”

- Article 62 of the Anti-Corruption Law which states that: “Public officials who for their own account or that of another, delay doing or fail to do something that they must do in their official capacity in the course of their work, in exchange accepting money or another benefit, shall be sentenced to three (3) to seven (7) years imprisonment and fined up to fifty percent (50%) of the benefit received or promised.

“The prison term shall be four (4) to eight (8) years and the fine for up to sixty percent (60%), if the action taken was to:

“1. Confer a civil service position, subsidy, pension or honors, or for the agreement to enter into contracts related to the administration to which the official belongs.

“2. Showing favor or disfavor to one of the parties in an administrative, criminal, civil or any other kind of proceeding.

“If the person responsible for the conduct is a judge and this results in a prison sentence for more than six (6) months, the prison sentence shall be from five (5) to ten (10) years.

“Any third party who was used by a public official to receive or accept the offer of money or another benefit on his behalf, and anyone who gave or promised to give the money or benefit indicated in this Article, shall be sanctioned with the same penalty in each case.”

Article 68 of the LCC states that: “Public officials who take advantage of their functions by using their position to favor or harm the electoral chances of a candidate, group, party or political movement, shall be sentenced from (1) to three (3) years in prison.”

Article 71 of the LCC provides that: “Public officials who unlawfully, directly or through a third party, take advantage of the functions they exercise or use the influence derived therefrom to obtain an economic advantage or benefit for themselves or a third party shall be sentenced to two (2) to four (4) years imprisonment. The same penalty shall apply to anyone who, for their own or another’s benefit, makes unlawful use of the influence or power over a public official so that the public official uses his official capacity to omit, delay or hasten something that is contrary to his duties. Public officials who act in such a way shall be subject to the same penalty increasing between one third (1/3) and one half (1/2 thereof, except in the case of the circumstances foreseen in the second part of Article 60 of this Law, in which case the sanction envisaged in the Article will be applied.”

Article 83 of the LCC provides that: “A Judge who fails to or refuses to rule, alleging that this matter is unclear, insufficient, contradictory or non-existent in this Law, shall be sentenced to one (1) to two (2) years in prison. If the Judge acted in his own interest, the sentence shall be doubled. Any Judge who infringes this law or abuses his power to benefit or harm a person who has been indicted, shall be sentenced to three (3) to six (6) years in prison. The Executive Directorate of the Magistracy of the Supreme Court of Justice shall take whatever steps are necessary to dismiss the Judge, who may only return to the judicial career twenty (20) years after serving the sentence, provided his behavior was impeccable during that time.”

74

- Article 13, paragraph 3 of the Organic Law against Organized Crime (LOCDO), provides that: “Anyone who obstructs the administration of justice or a criminal investigation for the benefit of an organized criminal group or a member thereof shall be sanctioned as follows: (. . .)

“3. The penalty for promising or giving money or some other benefit to achieve their purpose, shall be six to eight years in prison, and any public official or subordinate in the field of the administration of justice who accepts or receives money or a benefit shall be liable to the same penalty.”

With respect to paragraph (d) of Article VI(1):

- Article 470 of the Criminal Code (CP) states that: “Anyone who with the exception of the cases envisaged in Articles 254, 255, 256 and 257 of this Code purchases, receives, hides the proceeds of a crime in the form of foreign or domestic currency, public traded securities or movable property or is involved in the acquisition, receipt or concealment of the money, documents or things, that constitute proof of the crime, without having taken part in the crime itself, shall be sanctioned with three to five years in prison. If the money, items or publicly traded securities constitute the proceeds of a crime that is punishable with imprisonment for more than five years, the guilty party will be sentenced to five to eight year’s imprisonment.

“When the proceeds of a crime are enjoyed by public officials whose duty it is to apprehend a criminal or undertake a criminal investigation and who acted on their own or with another for the purpose of committing a crime, they will be sanctioned with the penalties foreseen in the last paragraph of this Article and will immediately be dismissed. In the cases provided for in the earlier provisions of this article, the prison term shall not exceed two thirds of the penalty established for committing the crime from which the things or legally owned securities come. ( . . . )”

- Article 52 of the Anti-Corruption Law (LCC) states that: “Any of the people indicated in Article 3 of this Law who for their own benefit or that of a third party, use or divert assets for whose collection, administration or custody they were responsible for, shall be sentenced to three (3) to ten (10) years in prison and fined between twenty (20%) and sixty percent (60%) of the value of the those assets. The same penalty shall apply if the agent, whether or not he actually holds the assets, uses, diverts or contributes to their use or diversion, for his own benefit or that of a third party, while taking advantage of his public office to do so.26”.

- With respect to money laundering, Article 4 of the Organic Law against Organized Crime (LOCDO) states: “Anyone who himself or through a third party owns or possesses capital, assets or benefits derived directly or indirectly from unlawful activities or serious crime, shall be

26 Article 3 de la LCC provides that: “Notwithstanding the provisions of the Law creating the Civil Service Statute, the following people are considered public officials or employees for the purposes of this Law: “1. People invested with public functions, permanent or temporary entities, remunerated or free, elected, appointed or contracted by the appropriate authority to serve the Republic, states, territories and federal dependencies, districts, and metropolitan districts or municipalities, national state district and municipal autonomous institutes, public universities Central Bank of Venezuela (BCV) or any of the agencies or entities of the public branch of power. 2. Directors and administrators of civil and mercantile companies, civil associations and other institutions created with public funds and directed by any of the people referred in Article 4 of this Law, or if the consolidated budgets or contributions in one fiscal year of those persons account for fifty percent (50%) or more of the budget or equity; and directors appointed to represent those agencies and entities, even if they have a share of less than fifty percent (50%) share of the capital or equity. 3 Any other person who meets the conditions established in this Law.” ( . . . )

75

sentenced to eight to twelve years in prison and fined a sum equivalent to the unlawfully obtained increase in the value of his capital.

“The same penalty shall apply to officials who undertake the following activities for their own account or that of another if they:

“1. Converted or transferred, by any means whatsoever, assets, capital, equity or surpluses with the intention of concealing the unlawful origin thereof or helped someone who involved in the commission of such crimes to evade the legal consequences of their actions.

2. Concealed or covered up the nature, origin, location, destination, movement, ownership or other right over the asset. ( . . . )”

With respect to paragraph (e) of Article VI(1):

- Article 80 of the Criminal Code (CP), Title IV, “Attempt and Frustrated Crime” states: “In addition to crimes committed and failure to commit a crime being punishable offences, attempts to commit a crime and frustrated crimes are also punishable. An attempt to commit a crime occurs when a person takes the appropriate measures to commit a crime but, for circumstances beyond his control, has not done everything that was required to complete it. A frustrated crime occurs when a person has done everything necessary to commit a crime but did not manage to do so due to circumstances beyond his control.”

Article 83 of the CP, regarding the simultaneous involvement of several people in the same punishable offence provides that: “When several people concur in order to commit a punishable offence, each of the perpetrators and immediate cooperators is subject to the penalty laid down for that offence. A person who leads another to commit the offence shall be equally liable.”

On the issue of covering up an act of corruption, in conformity with Article 254 of the CP: “Anyone who did not previously agree to participate in a crime that is punishable with imprisonment or detention, and did not contribute towards its commission, and nevertheless helps to ensure the advantage derived from the crime; prevents the authorities from investigating it or assist the perpetrators from persecution or being sentenced, or in any way destroys or alters the clues or signs of a crime that is subject to the above-mentioned sanctions, shall be sentenced to between one and five years in prison.”

Article 283 of the CP on the aiding and abetting of a crime, states that: “Anyone who publicly or through any method instigates another or others to carry out acts that are contrary to the law, shall be punished for merely instigating them:

1. If the instigation was intended to encourage someone to commit a crime that is punishable by a set prison term, imprisonment for one third the term of imprisonment for the crime instigated.

2. In all other cases, with fines of fifty tax units (150 U.T.), depending on the significance of the crime instigated.

- Article 18 of the Law against Organized Crime (LOCDO) states the following with respect to the participation of public officials: “If a public official is in any way involved in the commission of a crime defined in this Law, in addition to the penalty applicable for his criminal liability, he will also be dismissed from office and banned from exercising public functions or entering into

76

contracts with the State for a period of one to fifteen years after serving the sentence. If the crime committed harmed another national, state, or municipal entity, the maximum penalty shall be applied.”

3.2 Adequacy of the legal framework and/or other measures

With respect to provisions related to the criminalization of the acts of corruption provided for in Article VI(1) of the Convention that have been examined by the Committee, based on the information made available to it, they constitute, as a whole, a set of provisions relevant for promoting the purposes of the Convention..


“It should be stressed that pursuant to the sole derogatory provision of the Anti-Corruption Law (LCC), this Law repeals the Organic Law on the Protection of Public Property (Ley Orgánica de Salvaguarda del Patrimonio Público) published in Official Gazette Nº 3,077 Extraordinary of December 23, 1982, which when it came into force, expressly repealed (Article 109), Articles 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 233, 236 and Article 466 (50) of the Criminal Code which contains provisions on crimes against public property.

“The reform to the Criminal Code only affected some of its articles but those foreseen in Title III, Chapter II, Articles 195 to 236 on crimes against public property are not mentioned, since those articles have been repealed.

“It is therefore not in order to apply those provisions of the Criminal Code, as the juridical instrument that should be applied. The applicable instrument is the Anti-Corruption Law (LCC) which, in accordance with the provisions of Article 1, establishes the rules on the conduct of the persons subject thereto, in order to safeguard public property, and guarantees the proper and transparent management of public resources, based on principles of honesty, transparency, participation, efficiency, efficacy, legality, accountability and responsibility provided for in the Constitution of the Bolivarian Republic of Venezuela, as well as the definition of crimes against public property and the sanctions applicable to anyone who infringes these provisions and whose acts, deeds and omissions cause damage to public property.

“Article 91 of the Anti-Corruption Law (LCC) states that “trials for the commission of the crimes foreseen in this Law shall be governed by the provisions envisaged therein and those contained in the Organic Code of Criminal Procedure.” It is therefore clear that this, and not the Criminal Code, is the legislation that should be applied, which would eliminate any conflict between the two provisions indicated by the Secretariat. We therefore suggest that the following paragraphs and the corresponding recommendations be eliminated.”

If Venezuela’s suggestion is accepted, the following text which is struck through, and the corresponding recommendation, would be eliminated.

- First, in relation to Article VII (a) of the Convention, the Committee notes that Article 197 of the Criminal Code (CP) provides that “Public officials who, for their own account or that of another, corruptly receive money or the promise of money as a reward for doing something in their official capacity, shall be sentenced to one to two months imprisonment.”

77

The Committee also observes that Article 61 of the Anti-Corruption Law (LCC) states that: “Public officials, for their own account or that of another, corruptly receive a gratification or another benefit not due to them, or accept the offer thereof, for doing something in their official capacity, shall be sentenced to one (1) to four (4) years in prison and fined up to fifty percent (50%) of the amount received or promised. Anyone who gives or promises such money, gratifications or other benefit as are indicated in this Article shall be subject to the same punishment.”

The Committee notes that both Articles seem to criminalize the same kind of behavior. However, the penalty imposed in the Criminal Code is considerably lower than the one imposed in the Anti-Corruption Law and unlike the penalty imposed in Article 61 of the LCC, Article 197 does not contemplate any pecuniary sanction whatsoever. Neither does Article 197 provide that the person who gave or promised the money, gratification or other benefit shall be sanctioned with the same punishment as the person rewarded.

The Committee considers that the country under review would benefit from harmonizing both provisions in order to prevent a procedural contradiction that might weaken the system and open up the possibility of choosing which provision to be tried under, according to the principle of the most favorable penalty. The Committee will formulate a recommendation in this regard. (Chapter III, Section 3, Recommendation 3.1 (a) of this report).

- Secondly, with regard to Article VI (b) of the Convention, the Committee notes that Article 199 of the CP states that “Anyone who unsuccessfully tries to persuade or induce a public official to commit one of the crimes foreseen in the previous articles will be fined between one hundred and fifty (150) and one thousand tax units (1,000 U.T.) if the intention was for the official to commit one of the crimes foreseen in Article 197; and half the amount of the penalties stipulated in Article 198 if the intention was for the official to commit one of the crimes foreseen in that article27.”

The Committee notes that Article 63 of the LCC states that: “Anyone who, without achieving their purpose, attempts to persuade or induce a public official to commit one of the crimes foreseen in Articles 61 and 62 of this Law shall be sentenced to six (6) months to two (2) years in prison if the purpose of the inducement was to make the official commit the crime envisaged in Article 61; and if the purpose was to make him commit the crime indicated in Article 62, the penalties are half the amount.”

The Committee notes that both Articles deal with the same issue, but whereas under the Criminal Code this crime is punishable with a fine, the penalty under the Anti-Corruption Law is imprisonment. The Committee considers that even though these provisions do not contradict one another, the State under review could harmonize them to make the legislation more coherent and clearer to enforce. This would strengthen the system as it would avoid the possibility of the accused choosing the most advantageous of the two provisions, under the universal principle of the most favorable penalty. In this case the accused could choose the application of the provision under which he would be ordered to pay a file or the one according to which he would be sentenced to one year in prison. The Committee will formulate a recommendation in this regard. (Chapter III, Section 3, Recommendation 3.1. (b) of this Report.

27 Article 197 del Criminal Code provides that: “Public officials who, for their own account or that of another, corruptly receive money or the promise of money as a reward for doing something in their official capacity, shall be sentenced to one to two months imprisonment.”

78

- Thirdly, with regard to Article VI. 1 (c), the Committee observes that both Article 198 of the Criminal Code and Article 62 of the Anti-Corruption Law sanction public officials who, by delaying or not doing something they are required to do in their official capacity or doing something that is contrary to their duties, receive or exact a promise, money or some other benefit, either for their own account or that of another. Therefore, Article 62 adds the phrase “ for their own account or that of another,” which does not appear in Article 198.

However, as in the previous cases related to Article VI.1 (a) and (b) of the Convention, the Committee points out that there are differences in the penalties and the scope of both articles. As mentioned above, Article 62 of the LCC adds the phrase “for their own account or that of another.” Article 198 of the CP also states that the prison term shall be three (3) to five (5) years, whereas Article 62 of the LCC establishes a three (3) to seven (7) year penalty for the same behavior.

Article 198 of the CP also states that if the reward for committing the act was a public appointment, subsidy, pension or honors, or a contract in which the administration to which the official belongs has an interest; or showing favor or disfavor to any of the parties in a civil lawsuit or the guilty party in a criminal lawsuit, the prison sentence applicable will be four (4) to eight (8) years.

Article 62 of the LCC is almost a carbon copy of Article 198 of the CP, with the following differences: Article 198 imposes a sanction for showing favor or disfavor to any party in a civil lawsuit or to the guilty party in a criminal lawsuit; while Article 62 of the LCC, in addition to imposing a sanction for showing favor or disfavor to any of the parties in a civil or criminal lawsuit, adds that administrative procedures, or any other type of procedure. The penalty imposed by the LCC is stricter than the penalty under the CP for the same offence. For instance while the CP establishes a prison term of four (4) to eight (8) years and does not mention any kind of fine, the LCC adds to that penalty a fine of up to sixty percent (60%).

The LCC adds that when a public official receives or obtain a promise of money or another benefit through a third party, the person who gave or promised the money or other benefit indicated in Article 62, will be sanctioned with the same punishment, while the Criminal Code makes no mention at all on the matter.

The Committee suggests that the country under review could consider harmonizing them in order to make the legislation clearer and more efficient, and thereby avoid the possibility of choosing the most advantageous of the two provisions from the defendant’s point of view, under the universal principle of the most favorable penalty. The Committee will formulate a recommendation in this regard. (Chapter III, Section 3, Recommendation 3.1. (c) of this report).


“We do not share the opinion expressed by the Secretariat in the following paragraph that the return of property to the State not only is contained in the Anti-Corruption Law (LCC) but also in the Constitution. Thus, according to Article 271 of the Constitution: (…) There is no statute of limitations for the prosecution of crimes against human rights or public property or for drug trafficking. Therefore, subject to a court ruling, the proceeds activities related to crimes against public property or drug trafficking will be confiscated. Articles 87, 88 and 95 of the Anti-Corruption Law (LCC) states the following: Article 87. It is a public order requirement that those responsible for the offenses provided for in this Law must return, repair or compensate for

79

damage caused to public property. Article 88. The Public Prosecutor, in a separate chapter of the bill of indictment, shall propose the corresponding civil action to ensure the repair of the damage, the return of the property, compensation of the damage or payment of the interest incurred by criminal acts attributable to the accused that affected public property, in keeping with the provisions of Article 340 of the Code of Civil Procedure Article 95. The Judge’s final decision may, depending on the circumstances of the case, order the confiscation of the property of national or foreign individuals or companies involved in or responsible the offences established in this Law that seriously affect public property, and will accordingly request that the competent authorities take the necessary action to repatriate capital if appropriate.

Depending on the severity of the case, the Judge may also order the confiscation of the property of persons involved in the crime of illicit enrichment defined in Article 46 of this Law, and consequently the repatriation of capital. We therefore suggest that the following paragraph and the corresponding recommendation be eliminated.”

If Venezuela’s suggestion is accepted the text struck through below, and the corresponding recommendation, would be eliminated.

- Lastly, the Committee observes that neither the Criminal Code nor the Anti-Corruption Law make any mention of the subject of returning assets to the State in cases of acts of corruption committed by public officials. The Committee will formulate a recommendation in this regard. (Chapter III, Section 3, Recommendation 3.2 of this report).

3.3 Results of the legal framework and/or other measures

The Bolivarian Republic of Venezuela, in its Response to the Questionnaire, did not refer to the results obtained from the application of the above provisions.

The Committee points out the importance that the country under review complete the Questionnaire, including the Results section, in order to be able to make a comprehensive assessment of any progress made and the areas that need to be strengthened for the implementation the Convention.

This Committee considers that, given the lack of information from the Bolivarian Republic of Venezuela, it cannot assess the matter and will therefore formulate recommendations in this regard. (Chapter III, Section 3, Recommendation 3.3 and General Recommendation 4.2).

III. CONCLUSIONS AND RECOMMENDATIONS IN RELATION TO THE IMPLEMENTATION OF THE PROVISIONS SELECTED IN THE FRAMEWORK OF THE SECOND ROUND

Based on the review conducted in Chapter II of this Report, the Committee offers the following conclusions and recommendations regarding implementation by the Bolivarian Republic of Venezuela of the provisions contained in Article III(5) (systems of government hiring and for the procurement of goods and services); Article III(8) (systems for protecting public servants and private citizens who, in good faith, report acts of corruption); and Article VI (acts of corruption) of the Convention, which were selected for review within the framework of the second round.

1. SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION)

80

1.1 Systems of Government Hiring

The Bolivarian Republic of Venezuela has considered and adopted measures to establish, maintain and strengthen the systems of government hiring, as discussed Section 1.1 of Chapter II of this Report.

In light of the comments made in the above-noted section, the Committee suggests that the Bolivarian Republic of Venezuela consider the following recommendations:


“The Delegation of the Bolivarian Republic of Venezuela, considers that the observation and recommendations related to “Systems for Hiring Public Officials and for the Procurement of Goods and Services by the State” should be formulated and cover all the spheres of the Public Branches of Power, and not to those that refer specifically to some of their organs. This is because they are considered applicable to the whole of the Republic.”

Venezuela therefore suggests that the whole of the text that appears struck out in the rest of this chapter be eliminated.

If Venezuela’s suggestion is accepted, the changes indicated would be made as indicated below as well as the recommendations that would affect all the staff of the public administration equally.

1.1.1 Strengthen the systems of government hiring systems within the framework of the public administration system. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Regulate the Civil Service Statute Law (LEFP) so as to define the norms, guidelines and processes of a subsystem of government hiring that is based on merit, thereby assuring compliance with the principles of openness, equity and efficiency as set forth in the Convention. (See Chapter II, Section 1.1.2. of this Report).

b) Define the guidelines and parameters according to which staffing plans will be developed by the National Public Administration, as provided for in Article 8 of the Civil Service Statute Law (LEFP). (See Chapter II, Section 1.1.2. of this Report).

NOTE BY THE SECRETARIAT #64: Colombia suggests that the recommendation underlined below be added:

c) “Design the pertinent measures to establish an oversight body or mechanism in charge of organizing and developing the public competitive examinations that must be held by the human resources offices of the Public Administration agencies and entities.”

The Secretariat points out that if Colombia's proposal is accepted, the recommendations would be numbered accordingly.

81

The Delegation of Venezuela considers that this suggestion is not pertinent for the reasons given before. (See Note by the Secretariat #14)

d) Take relevant measures to include in the appropriate legislation the issue of consanguinity and affinity as being incompatible with occupying a public post. (See Chapter II, Section 1.1.2. of this Report).

1.1.2 Strengthen the system of government hiring of public officials in the Legislative branch. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

NOTE BY THE SECRETARIAT #65: Ecuador proposes the inclusion of the following recommendation:

e) “Define in detail what is meant by “interim” or “welfare” positions that allow more than one public office to be held. ( See Chapter II, Section 1.1.2. of this report).”

Venezuela also strikes this text through in its observations to Ecuador’s comments.

a) Regulate staff contracts to determine exactly what type of work justifies such contracts, how it differs from work undertaken by career staff as well as any relevant time restrictions, in order to prevent this method from being used to hire permanent staff who are not governed by the same legislation as career staff, and thereby guarantee compliance with the principles of openness, equity and efficiency contained in the Convention. (See Chapter II, Section 1.1.2. of this Report).

b) Make the necessary changes to establish guidelines on the implementation of a staff recruitment subsystem with parameters on the manner to hold competitive examinations, including the methods for announcing vacancies and publishing selection requirements, in order to ensure that merit-based competitive examinations comply with principles of legality, equity, neutrality, equality and transparency. (See Chapter II, Section 1.1.2. of this Report).

c) Take relevant measures to include in the appropriate legislation the issue of consanguinity and affinity as being incompatible with occupying a public post in the legislative branch. (See Chapter II, Section 1.1.2. of this Report).

1.1.3 Strengthen the system of government hiring of public officials in the Judicial branch. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Carry out the relevant amendments to ensure that the career service in the judiciary is not solely limited to judges, but are also to other public officials in the Judiciary. (See Chapter II, Section 1.1.2. of this Report).

82

b) Take the necessary steps to enact the Judicial Personnel Statute pursuant to the provisions of Transitory Article 52 of the Judicial Careers Law (LCJ), which takes into account a merit-based recruitment subsystem and include parameters on the manner to hold competitive examinations, measures on the announcement of vacancies, publication of selection requirements and the mechanism for challenging a decision, including access to a second level of appeal, all of which must comply with the principles of openness, equity and efficiency contained in the Convention. (See Chapter II, Section 1.1.2. of this Report).

c) Take steps towards passing the Law regulating the Office of the Ombudsman, in keeping with the provisions of Transitory Article 53 of the Judicial Careers Law (LCJ)28, and ensuring that said Law includes a merit-based selection process, a mechanism for challenging decisions and access to a second level of appeal, and also that it complies with the principles of openness, equity and efficiency provided for in the Convention. (See Chapter II, Section 1.1.2. of this Report).

1.1.4 Strengthen the system of government hiring of public officials in the Office of the Public Prosecutor. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Take relevant steps to regulate the hiring of professionals, technicians and experts, or other external staff, so as to determine exactly what type of work justifies such a contract, how it differs from the work undertaken by career staff, and any pertinent time restrictions in order to prevent this method from being used to hire permanent staff who would not fall under the same legislation as career staff, and thereby guarantee compliance with the principles of openness, equity and efficiency contained in the Convention. (See Chapter II, Section 1.1.2. of this Report).

b) Make the necessary changes so that merit-based competitive examinations are compulsory for candidates for career positions, and not just limited to the positions of Senior Prosecutor and Prosecutor of the Office of Public Prosecutor and Attorneys for Minors. (See Chapter II, Section 1.1.2. of this Report).

c) Make the necessary changes to establish guidelines on the implementation of a staff selection subsystem that consist of parameters on the manner to hold competitive examinations, including methods for announcing vacancies and publishing selection requirements, so as to guarantee that merit-based competitive examinations are held according to the principles of legality, equity, neutrality, equality and transparency. (See Chapter II, Section 1.1.2. of this Report).

NOTE BY THE SECRETARIAT #66: Colombia suggests that the incorporation of the recommendation transcribed below:

c) Regulate the offices which require candidates thereto to sit competitive examinations to

28 The Committee notes that the Bolivarian Republic of Venezuela presented the new Organic Law o the Ombudsman published in Official Gazette Nº 38,595, after the deadline for submitting the response to the questionnaire, due to the fact that it came into effect on January 2, 2007. This is why this legislation was not reviewed.

83

enter the Public Prosecutions Service as civil Servants.

The Secretariat points out that if this proposal is accepted, the recommendations would be numbered accordingly.

d) Consider reviewing positions that are very technical in nature yet classified as subject to free appointment and removal under Article 8 of the Personnel Statute of the Office of the Public Prosecutor (EPMP), in order to incorporate them in a merit-based recruitment system with the possibility of access to a career position. (See Chapter II, Section 1.1.2. Chapter II of this Report).

e) Implement a procedure for challenging the selection process and the decisions of the evaluation panel, with access to a second level of appeal, in order to foster observance of the principles of openness, equality and efficiency contained in the Convention. (See Chapter II, Section 1.1.2. of this Report).

1.1.5 Strengthen the system of government hiring of public officials in the Office of the Comptroller General. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Approve the Manual of Rules of Procedure of the Statute of the Office of the Comptroller General of the Republic (EPCGR) referred to in Articles 1 and 8 of the EPCGR, and ensure that they include parameters on how to carry out competitive examinations, methods for keeping a register of eligible candidates, as well as the manner to announce vacancies and publish selection requirements, so as to guarantee that these competitions comply with the principles of openness, equity and efficiency. (See Chapter II, Section 1.1.2. of this Report).

b) Consider revising those positions that are very technical in nature and are listed as appointments subject to free appointment and removal or positions of trust in Article 4 of the EPCGR, in order to incorporate them in a merit-based selection system with the possibility of access to a career position. (See Chapter II, Section 1.1.2. of this Report).

c) Take relevant measures to include in the appropriate legislation the issue of consanguinity and affinity as being incompatible with occupying a public post in the Office of the Comptroller General of the Republic. (See Chapter II, Section 1.1.2. of this Report).

1.1.6 Strengthen the system of government hiring of public officials in general. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Ensure that entry into the public administration is subject to a public competitive examination, pursuant to the terms of Article 146 of the Constitution and the pertinent legislation. (See Chapter II, Section 1.1.2. of this Report).

84

b) Monitor the staff selection processes by way of the contracting method, in order to verify that this system is not used as a means of evading the merit-based competitive examination system. (See Chapter II, Section 1.1.2. of this Report).

NOTE BY THE SECRETARIAT #67: Ecuador proposes the incorporation of the following recommendation:

d) “Define the precise meaning of positions of “trust,” in order to prevent this qualification allowing a large number of civil servants to hold public office without taking a competitive examination. (See Chapter II, Section 1.1.2. of this report).”

This text is struck through in the document on the observations made by Venezuela to Ecuador.

1.2 Government Systems for the Procurement of Goods and Services

The Bolivarian Republic of Venezuela has considered and adopted measures intended to establish, maintain and strengthen the systems for government procurement of goods and services, as discussed in Section 1.2 of Chapter II of this Report.


1.2.1 Strengthen the procedures for public tender with competitive bidding and procurement in general. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

NOTE BY THE SECRETARIAT #68: Colombia suggests that the text of the following recommendation underlined below be incorporated:

a) Establish constitutional provisions that establish the general principles governing procurement.

The Secretariat notes that if this proposal is accepted, the recommendations would be adjusted accordingly.

The Delegation of Venezuela considers that this recommendation would not be pertinent for the reasons given above (See Note by the Secretariat #36)

a) Stipulate the regulatory system that will govern procedures for selecting contractors for the procurement of works, goods and services, whose total or partial value must be paid for with funds from international cooperation agreements between the Bolivarian Republic of Venezuela and other States. (See Chapter II, Section 1.2.2 del Chapter II of this Report)

NOTE BY THE SECRETARIAT #69: Colombia suggests incorporating the following recommendations:

b) Review the grounds on which this Decree applies to insurance contracts or contracts for financial services.

85

c) Regulate Article 6 of the Decree-Law in order to establish objective criteria regarding the definitions of unfavorable or adverse conditions.

If Colombia’s suggestion is accepted, the numbering would be changed accordingly.

d) Amend the legislation in force on the selective bidding processes referred to in Article 73 of the Decree-Law on the Partial Reform of the Public Tenders Law (DFLRPLL), in order to establish what is meant by a reasoned decision, regulate the manner of its proper use and specify which authority or oversight body must approve it. (See Chapter II, Section 1.2.2 of this Report)

e) Revise the conditions for authorizing direct bidding processes in the cases referred to in Article 88 of the DFLRPLL, to establish what is meant by a reasoned decision, regulate the manner of its proper use and specify which authority or oversight body must approve it. (See Chapter II, Section 1.2.2 of this Report).

f) Foster the principles of openness, equity and efficiency through the revision of Article 59 of the Administrative Procedures Law, in order to define what is meant by a reasoned decision for classifying a document as confidential and to include it in separate section of the file so that the public does not access to them, thereby establishing a clean and transparent procedure and ensuring that the decision is not left solely to the discretion of a hierarchal superior. (See Chapter II, Section 1.2.2. of this report).

g) Undertake coordinated action between the branches of government and citizens in order to strengthen educational and preventive work so as to enforce the corresponding legislation, thereby ensuring that public tenders will become the norm and not the exception in government procurement. (See Chapter II, Section 1.2.3. of this report).

1.2.2 Strengthen government procurement oversight mechanisms. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Strengthen the governing bodies of the Public Sector procurement system, especially the National Procurement Service, as far as the functions developed in relation to administration and control of the system are concerned, providing it with the funds necessary to fulfill its functions, and establishing mechanisms to enable institutional coordination and constant evaluation and followed up, in order to ensure that the system functions as a central autonomous authority for managing public procurement systems and oversight mechanisms. (See Chapter II, Section 1.2.2. of this report).

b) Complement, through the appropriate authority, the DFLRPLL by establishing social oversight mechanisms for procurement activities, such as qualified citizen

86

watchdog groups, in order to reinforce control of those activities. (See Chapter II, Section 1.2.2. of this report).

c) Establish clear procedures on the necessary requirements for classifying a procurement contract as confidential for reasons of national security. (See Chapter II, Section 1.2.2. of this report).

d) Make the changes deemed necessary, in the case of contracts that are confidential for reasons of national security, in order to stipulate how the contracting entities must, at the close of each fiscal year, present the schedule of works, goods and services procurement for the following fiscal year and to which entity they should present it. (See Chapter II, Section 1.2.2. of this report).

e) Make the necessary modifications to define more precisely what is meant by contracts for ‘highly specialized services used only sporadically’ referred to in Article 36 of the DFLRPLL. (See Chapter II, Section 1.2.2. of this report).

f) Consider creating a register of the type of contract referred to in Article 36 mentioned in the previous paragraph, particularly in the case of international public tenders. (See Chapter II, Section 1.2.2. of this report).

1.2.3 Continue strengthening electronic methods and information systems for government procurement. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Enact regulations on publications related to the processes for selecting contractors referred to in Article 60 del DFLRPLL. (See Chapter II, Section 1.2.2. of this report).

b) Establish the official publishing body referred to in Article 60 of the DFLRPLL, thereby ensuring the inclusion of modern computer-based methods such as the Internet to ensure the widespread dissemination of this information. (See Chapter II, Section 1.2.2. of this report).

c) Amend Article 67 of the DFLRPLL, which states that invitations to tender in general bidding processes, including international invitations to tender, shall be published in a major national newspaper, so as to include the use of modern means of communication such as the Internet, to ensure that this information is widely disseminated. (See Chapter II, Section 1.2.2. of this report).

1.2.4 Strengthen the identification of criteria for selecting contractors. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

- Establish selection criteria for contracts that do not require a public competition or tender. (See Chapter II, Section 1.2.2 of this Report)

1.2.5 Continue to foster the principles of openness, equity and efficiency foreseen in the Convention. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

87

a) Make the changes required to define the procedure to be followed in the event that the contracts foreseen in Article 113 of the DFLRPLL are declared void. (See Chapter II, Section 1.2.2 of this Report)

b) Include a specific procedure for challenging decisions in the legislation in force, with access to a second level of appeal by contractors who are denied inclusion in the Register of Contractors. (See Chapter II, Section 1.2.2 of this Report)

c) Include in the existing legislation in force a specific procedure for challenging decisions, with access to a second level of appeal, through a mechanism set up specifically for that purpose, in order to resolve any doubts, controversies or complaints that may arise as a result of contracts for implementing works and that cannot be resolved by the parties by mutual agreement. (See Chapter II, Section 1.2.2 of this Report)

d) Include in the existing legislation in force a specific procedure for challenging decisions, with access to a second level of appeal, through an administrative mechanism set up specifically for that purpose, so that all bidders can appeal, in whole or in part, the procedure for awarding contracts. (See Chapter II, Section 1.2.2 of this Report)

e) Consider consolidating the legislation on public procurement in a single concise and well-defined volume, to facilitate access and application by public servants and facilitate access to it by the public. (See Chapter II, Section 1.2.2 of this Report)

NOTE BY THE SECRETARIAT #70: Colombia suggests that the following recommendations be incorporated:

d) Amend the public tenders law to take into account general selection criteria or principles and thereby avoid them only being stated in the bidding terms and conditions of each tender.

e) Make provisions to publish the pre-bidding terms and conditions for the tenders in order that the interested parties can be informed of them and make their comments.

f) Implement an information system to publish bidding processes and enable all those citizens interested to consult them.

If Colombia’s suggestion is accepted, the paragraphs would be numbered accordingly.

2. SYSTEMS FOR PROTECTING PUBLIC SERVANTS AND PRIVATE CITIZENS WHO IN GOOD FAITH REPORT ACTS OF CORRUPTION (ARTICLE III, (8) OF THE CONVENTION)

The Bolivarian Republic of Venezuela has considered and adopted certain measures intended to establish, maintain and strengthen systems for protecting public servants and private citizens who in good faith report acts of corruption, as discussed in Section 2 of Chapter II of this Report.

In view of the comments made in that section, the Committee recommends that the Bolivarian Republic of Venezuela strengthen the system for protecting public servants and private citizens who in good faith report acts of corruption. In light of the comments made in the above-noted

88

section, the Committee suggests that the Bolivarian Republic of Venezuela consider the following recommendation:

2.1 Strengthen systems for protecting public servants and private citizens who in good faith report acts of corruption. In meeting this recommendation, the Bolivarian Republic of Venezuela could take into account the following measures:

a) Introduce the necessary reforms in the legislation in force in order to ensure protection of the person who in good faith report acts of corruption, and also their families, as effectively as possible and pursuant to the legislation governing the civil service. This should not be limited to criminal proceedings but also administrative ones. Additionally their labor situation must be protected, especially in cases involving public servants and when the acts of corruption involve their superiors or colleagues from the office. (See Chapter II, Section 2.2 of this Report).

b) Make the necessary amendments to the criminal legislation and to the legislation on the civil service to safeguard the identity, as effectively as possible, of persons who in good faith report acts of corruption. (See Chapter II, Section 2.2 of this Report).

c) Mechanisms that facilitate international cooperation in addressing this topic, when appropriate. (See Chapter II, Section 2.2 of this Report).

NOTE BY THE SECRETARIAT #72: Colombia suggests that the text underlined below be incorporated:

d) Pass legislation to protection the labor situation of public officials, taking into account their job stability and the need to prevent retaliation for the complaints filed in cases of corruption.

If Colombia’s suggestion is accepted, the numbering would be changed accordingly.

3. ACTS OF CORRUPTION (ARTICLE VI.1 OF THE CONVENTION)

The Bolivarian Republic of Venezuela has adopted measures aimed at criminalizing the acts of corruption indicated in Article VI(1) of the Convention, as discussed in Section 3 of Chapter II of this Report.


3.1 Harmonize and/or complement the articles of the Criminal Code (CP) and the Anti-Corruption Law (LCC) on the criminalization of acts of corruption connected with that article of the Convention, and its respective penalties, paying special attention to the following:

89

a) Bring Article 197 of the Criminal Code (CP) in line with Article 61 of the Anti-Corruption Law (LCC), thereby eliminating any omission or contradiction between both articles, and ensuring that the penalties in both of them are identical for the same offences and that those penalties are proportionate to the severity of the crime committed. (See Chapter II, Section 3.2 of this report).

b) Harmonize Article 199 of the Criminal Code (CP) and Article 63 of the Anti-Corruption Law (LCC), so that the same penalty is applied for the same crime, since while Article 199 sanctions a crime with a fine, the Anti-Corruption Law (LCC) sanctions that same crime with imprisonment. At the same time ensure that both the monetary penalty and the prison sentence are proportionate to the severity of the crime committed. (See Chapter II, Section 3.2 of this report).

c) Bring Article 198 of the Criminal Code (CP) in line with Article 62 of the Anti-Corruption Law (LCC), thereby eliminating any omission or contradiction between both articles, ensuring that the penalties stipulated in both of them are identical for the same offences and that those penalties are proportionate to the severity of the crime committed. (See Chapter II, Section 3.2 of this report).

3.2 Make the necessary changes to provide for the return of public property obtained through acts of corruption committed by public officials. (See Chapter II, Section 3.2 of this report).

3.3 Provide a comprehensive Response to the Questionnaire regarding the provisions of the Inter-American Convention against Corruption within the periods established, including the section on results. (See Chapter II, Section 3.3. of this report).

4. GENERAL RECOMMENDATIONS

Based on the review and contributions made throughout this Report, the Committee suggests that the Bolivarian Republic of Venezuela consider the following recommendations:

4.1. Design and implement, when appropriate, training programs for public servants responsible for implementing the systems, standards, measures and mechanisms considered in this Report, for the purpose of guaranteeing that they are adequately understood, managed and implemented.

4.2. Select and develop procedures and indicators, when appropriate and where they do not yet exist, to analyze the results of the systems, standards, measures and mechanisms considered in this Report, and to verify follow-up on the recommendations made herein (See Chapter II, Sections 1.1.3.; 1.2.3.; and 3.3. of this report).

5. FOLLOW-UP

The Committee will consider the periodic update Reports submitted by the Bolivarian Republic of Venezuela concerning progress in implementing previous recommendations, within the framework of the plenary meetings of the Committee and in accordance with the provisions of Article 31 of the Rules of Procedure and Other Provisions.

Similarly, the Committee will review the progress in implementing the recommendations made in this Report, in accordance with the provisions of Article 29 of the Rules of Procedure.

90

NOTE BY THE SECRETARIAT #73: Colombia suggests that in those events in which the State has provided incomplete responses to the Questionnaire of the First Round, the following paragraphs be used in order to highlight the progress made by the State under review while pointing out the need for providing attention to the implementation of said recommentations:

“The Committee takes note of the steps taken by the reviewed Stated for the advancement in the implementation of the aforementioned recommendation and of the need that it continues to give attention to this matter.”

“The country’s Response to the questionnaire did not address the rest of the elements of this recommendation. In view of this, the Committee takes note of the need that the Bolivarian Republic of Venezuela provides additional attention to its implementation.”

If Colombia’s suggestion is accepted, the text would be revised accordingly.

IV. OBSERVATIONS REGARDING THE PROGRESS MADE WITH IMPLEMENTING THE RECOMMENDATIONS ISSUED IN THE FIRST ROUND

The Committee observes, in relation with the implementation of the recommendations formulated for the Bolivarian Republic of Venezuela in the Report in the First Round of review, based on the information at its disposal, the following:

1. STANDARDS OF CONDUCT AND MECHANISMS TO ENFORCE COMPLIANCE (ARTICLE III, PARAGRAPHS 1 AND 2 OF THE CONVENTION)

1.1. Standards of conduct intended to prevent conflicts of interest and enforcement mechanisms

Recommendation:

Strengthen the implementation of laws and regulatory systems related to conflicts of interest, in order to permit the effective and practical enforcement of a system of public ethics.

Measures suggested by the Committee:

a) Review and analyze the possibility of regulating the system of prevention of conflicts of interest, incompatibilities, restrictions, disqualifications and prohibitions relating to the senior posts of the state, taking into account the specificities and importance of these posts, as well as the mechanisms to enforce said regulations. Considering, among other aspects, the provision of incompatibility in the exercise of public functions with respect to other public or private activities in which there could exist any circumstance that would compromise impartiality; strengthening the sanctions system; and provision of a fully autonomous body to oversee full compliance with these regulations.

b) Review and analyze broadening and strengthening the system of legal impediments, prohibitions, incompatibilities and disqualifications contained in the sectoral laws related to conflicts between private and public interests. In so doing, consider making provision for and broadening certain assumptions that could shape conflicts of interest and that, because of their importance, it would be appropriate to deal with in a more

91

detailed and specific manner; determining the entities or officials in charge of ensuring compliance; and applying measures and penalties in case of non-compliance.

c) Ensure the applicability and application of the sanctions envisaged for public servants who infringe the rules governing conflicts of interest, including among other provisions, the cases covered in Article 123 of the National Public Treasury Organic Act.

d) Extend the statutory limitation period established in Article 88 of the Civil Service Statute, taking into account the importance of strengthening instruments that currently available to the administration, so that they do not constitute an obstacle to determining the individual disciplinary liability of public servants who commit offences, and the need for the above-mentioned period to be consistent with and fulfill the same purpose as other existing time limits, as noted in section 1.1.2 of this report.

e) Ensure that the registry of civil servants in the employ of the national civil service, provided for in Article 9 of the Civil Service Statute, is used for the prevention and punishment of conflicts of interest.

f) Review and analyze the possibility of incorporating a regulation that limits or prohibits the participation of former civil servants in the management of certain areas of activity and, in general, situations that could lead to individuals taking undue advantage of their status as former public servants.

In its Response, the country under review provided no information with respect to the above recommendation. The Committee takes note of the need for the country under review to give additional attention to its implementation.

1.2. Standards of conduct to ensure the proper conservation and use of resources entrusted to government officials

Recommendation 1.2.1

Continue to bring the Criminal Code in line with the provisions of Article 271 of the Constitution, which stipulates the non-applicability of statutory limitations on crimes against public property.



Consider the possibility of extending the five-year disqualification period for public service, established in Article 96 of the Anticorruption Act (LCC), to any official or public employee punished for any crime stipulated in this Act, to 15 years, pursuant to Article 105 of the Organic Act of the Office of the Comptroller General and the National Fiscal Control System (LOCGRSNC).



92

Strengthen the power of the Judiciary so that it retains the power to determine the liability of public servants for crimes of corruption, notwithstanding laws that allow other bodies to take administrative or other action.

It is suggested that a review and analysis be made of the possibility of developing regulations that clearly delimit the scope of the expression in ‘order to avoid paralysis of service operations’ contained in Article 59 of the Anticorruption Act, with a view to limiting room for discretionary decision-making in implementing the said standard and the procedure to be followed, specifying the moment when such authorization must be produced.

In its Response, the Bolivarian Republic of Venezuela presents information with respect to the above recommendation, and states in its Response to the Questionnaire that in May 2004, the Organic Law of the Supreme Court of Justice came into force, and whose Article 5 (1) and (2) grants the Full Bench of the Supreme Court of Justice the following attribution:

“a) declare whether or not there is good reason to prosecute the President of the Republic. If there is good reason, continue to hear the case, subject to the approval of the National Assembly, until a final decision is reached; b) declare whether or not there is good cause to prosecute other senior state officials, such as the Executive Vice President, members of the National Assembly or the Supreme Court of Justice, Ministers, Attorney General, Prosecutor General, Comptroller General of the Republic, Ombudsman, Governors, Officials, Generals and Admirals of the National Armed Forces, in command functions, and Heads of Venezuelan Diplomatic Missions. If it is determined that there is good reason, send the court records to the Attorney General or the person standing in for him if applicable; and if the crime is a common one, continue to hear the case until a final decision is reached.”

The Response of the Bolivarian Republic of Venezuela to the Questionnaire did not refer to the other aspects of this recommendation. The Committee takes note of the need for the country under review to give additional attention to its implementation.


Take relevant measures to ensure that the discretion allowed in several provisions related to government procurement, as well as in Article 59 of the Anti-Corruption Act (LCC), does not constitute an element that affects or could prompt a public servant to engage in illicit conduct or to make arbitrary decisions, in relation to the preservation and proper use of public resources, as mentioned in Section 1.2.3.



Design and implement mechanisms to inform and train all public servants with respect to the standards of conduct mentioned in this section, and to handle enquiries about the standards, as well as provide periodic training and updating with regard to said standards

In its Response, the Bolivarian Republic of Venezuela presents information with respect to the above recommendation. In this regard, the Committee notes, as steps which contribute to progress in implementation of the recommendation, the measures taken with respect to:

93

- Design and application by the Ministry of Foreign Affairs in 2005 of a system to identify staff training needs as well as the result in the programming of courses given in 200629.

- Signing of a Cooperation Agreement between the Ethics Council (Consejo Moral Republicano del Estado Venezolano) and the Ministry of Education and Sport, in February 2006, called “Civic Training and the Recovery of School, Family, Community and Civil Service Values” to foster civic and citizen training in the family, school and community environment, beginning in the schools, and encourage public officials and the users of public administration services to adhere to the principles and moral ethical values that support the public service.

- Workshops on Citizen Training and the Recovery of the Values of Civil Servants 30, held in June and July 2006.

- Different training activities on matters related to citizen participation, training in values and social comptrollership, undertaken at the offices of the State and Municipal Comptrollers in 2004 and 2005.

The Committee takes note of the steps taken by the country under review to proceed with the implementation of the foregoing recommendation as well as the need for the Bolivarian Republic of Venezuela to continue giving attention to the implementation of this recommendation.

1.3. Standards of conduct and mechanisms concerning measures and systems requiring government officials to Report to appropriate authorities acts of corruption in the performance of public functions of which they are aware


Develop regulations and mechanisms in order to facilitate and promote the reporting of acts of corruption. This should be complemented by measures that protect public servants who report these acts, in particular when these acts involve managers or superiors.

Ensure that the regulations and provisions in force, for instance Article 2 of the Presidential Order through establishing the Code of Conduct of Public Servants, specifically allows people to report unlawful acts to the oversight bodies, eliminating the requirement to inform only the management of the institution where the public servant reported works.

In its Response, the Bolivarian Republic of Venezuela presents information with respect to the above recommendation, and which the Committee considers that the recently approved Law on the Protection of Victims, Witnesses and Persons involved in Judicial Proceedings, published in the Official Gazette of October 4, 2006, which came into force on November 4, 2006, is a step towards its implementation.



Consider the possibility, in the case of employees who fail to comply with the obligation to report, of imposing punishment of a criminal or administrative nature that is more severe than the

29 Response of the Bolivarian Republic of Venezuela to the Questionnaire, pages 84 and 85.30 Ibid., pages 85-86.

94

current system of fines, including loss of employment, among other penalties, depending on the seriousness of the offence.



Update the financial penalties set forth in the criminal code, taking into account the seriousness of corruption offenses in the public service.


2. SYSTEMS FOR REGISTERING INCOME, ASSETS AND LIABILITIES (ARTICLE III, PARAGRAPH 4, OF THE CONVENTION)

Recommendation

Broaden and complement the systems for disclosing income, assets and liabilities by adopting perti-nent legal regulations.


a) Promulgate legal provisions and other pertinent measures in order to establish clearly those parties from whom the Comptroller General of the Republic may request the periodic presentation of a sworn statement of net worth, to ensure that these provisions include senior officials within the public administration and those who, given the importance and nature of their posts, could facilitate or generate illicit enrichment or other unlawful acts against public property, and to determine the deadlines for presenting said statements, their contents and formal requirements.

b) Consider the appropriateness of requiring sworn statements at times other than those already provided for, establishing reasonable timelines for updating them or circumstances under which it would be advisable to require their presentation.

c) Strengthen the role afforded to officials in charge of human resources units under Article 26 of the Anticorruption Act. This could be achieved by stipulating the obligation of these units to immediately notify the Office of the Comptroller General whenever an individual obliged to do so fails to present proof of presentation of the statement of income, assets and liabilities, and by specifying/detailing the corresponding actions to be taken by the Office of the Comptroller General in such situations.

d) Regulate the conditions, procedures and other appropriate aspects related to the publicizing of sworn statements of income, assets and liabilities, as applicable.

e) Use sworn statements of income, assets and liabilities to detect and prevent conflicts of interest.

f) Implement a register of those obliged to present sworn statements of income, assets and liabilities and mechanisms for the periodic updating of said register.

95

g) Implement the necessary procedures for achieving effective control over compliance in presenting these statements, in accordance with the recommendation made in point f) above.

h) Consider the possibility of adjusting prevailing legislation to make use of modern information and communications technologies to administer and manage these statements.


- Promulgation by the Office of the Comptroller General of the Republic of several resolutions31 to require the presentation of updated sworn statements of assets by public officials within the Ministries of Education, Culture and Sport; Higher Education; and Health and Social Development; members of the programs making up the National Armed Forces and the officials of the Legislative Branch mentioned in the respective resolutions32.

- A preliminary Anti-Corruption bill which is currently being reviewed the National Assembly and would provide for the partial publication of the Sworn Statement of Assets, to make this information public knowledge so that possible cases of unjustified enrichment by public officials while performing their duties can be reported33.

- Studies being conducted by the Office of the Comptroller General of the Republic on the legal, technological and budgetary methods that would make it possible to detect, follow up and punish conflicts of interest using sworn statements of assets34.

- Promulgation of Resolution No. 01-00-001, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 38,354, on October 1, 2006, through which the Office of the Comptroller General of the Republic requires that all those responsible for the human resources area of the entities or agencies under their control must report movements on staff who enter or leave its service in a Monthly Report called the “Relación Mensual”35.

- Studies being conducted by the Office of the Comptroller General of the Republic on the possibility of implementing a technological program through which public officials or employees would be able to submit their Sworn Statements of Assets electronically36.

The Response of the Bolivarian Republic of Venezuela to the Questionnaire did not refer to the other aspects of this recommendation. The Committee takes note of the steps taken by the country under review to proceed with the implementation of the foregoing recommendation as well as the

31 The Committee notes that together with a memorandum sent to the Technical Secretariat dated December 22, 2007 the Bolivarian Republic of Venezuela remitted Resolution Nº 01-00-000367 of December 4, 2006, published in Official Gazette Nº 38,579 of December 7, 2006, whereby the Office of the Comptroller General of the Republic requires that between April 1 and the last day of April of each year, a Sworn Statement of Assets be submitted to the senior officials of the entities and agencies of the National Public Branch of Power. 32 Ibid., pages 88-91.33 Ibid., pages 91-92.34 Ibid., pages 92-93.35 Ibid., pages. 93-95.36 Ibid., pages 95-96.

96

need for the Bolivarian Republic of Venezuela to continue giving attention to the implementation of this recommendation.

3. OVERSIGHT BODIES FOR THE SELECTED PROVISIONS (ARTICLE III, PARA-GRAPHS 1, 2, 4 AND 11 OF THE CONVENTION)

Recommendation 3.1

Strengthen the supervisory work carried out by the Office of the Comptroller General, as the lead body for oversight and monitoring of state comptroller’s offices, considering the possibility of conducting a larger number of evaluations or diagnoses on their activities, or using the mechanisms or instruments deemed appropriate to verify their proper operation.


Recommendation 3.2

Strengthen the work of the Office of the Comptroller General by putting into practice policies and concrete actions to check follow-up and implementation by entities under its supervision of corrective actions suggested during audits, diagnoses or evaluation.


4. MECHANISMS TO PROMOTE THE PARTICIPATION BY CIVIL SOCIETY AND NONGOVERNMENTAL ORGANIZATIONS IN EFFORTS TO PREVENT CORRUP-TION (ARTICLE III, PARAGRAPH 11 OF THE CONVENTION)

4.1 General participation mechanisms

Recommendation

Analyze existing legal norms, for the purposes of identifying provisions that could be adversely affecting these rights, including those provisions related to the requirement concerning sources for funding civil society organizations and for the purposes of making changes that are deemed relevant to assuring that in the existing juridical structure, there are no provisions that put a limit on their participation in the prevention of corruption.


4.2 Mechanisms for access to information

Recommendation

Institute legal standards and measures to support access to public information.


97

a) Strengthen the guarantees provided on the exercise of the right to public information, including the possibility of accessing a type of information other than that already provided for; and consider the implementation of provisions that ensure that access to such information can only be denied for reasons explicitly regulated and determined by law.

b) Consider the advisability of integrating and systematizing in a single regulatory text the provisions that guarantee access to public information.

c) Establish a specific procedure to protect the right of citizens to access public information, establishing for this purpose, among other aspects, the following: i) procedures for accepting requests and responding to them on a timely basis; ii) an entity or offices charged with this function and an oversight agency that should monitor the implementation of these regulations; iii) requirements on admissibility and consequences when such requirements are not met; iv) reasons why a request may be denied; v) method for communicating with the official who submitted the request; vi) prompt and specialized administrative remedies allowing for appeal of a decision made by a public servant who improperly denies access to the information being sought; and vii) an increase in the number of sanctions so as to cover a broader spectrum of circumstances that could hamper, delay or prevent the exercise of this right and that involve the conduct of public servants.

d) Implement, if this has not yet been done, the provision of Article 9 of the Anticorruption Act relating to the creation of public or citizen service offices, ensuring that they have sufficient resources to carry out their work.

e) Implement training and dissemination programs on mechanisms for access to public information held by the State, in order to facilitate the understanding thereof by public officials and citizens and optimize the use of the technology available for this purpose.


- The creation of more than 67 Citizen Service Offices created in different bodies of the public administration37, under the Office of the Comptroller General of the Republic.

- The “Workshop on the Strengthening of Relations between the State and Society within the new constitutional framework” sponsored by the Ministry of Foreign Affairs in 2006, in which representatives of the political, social and economic sectors in the country participated, and at which officials from the ministry exchanged ideas on ways and means to strengthen the relationship between the state and society38.

- The Ministry of Science and Technology’s program entitled “The Virtual Community in the National Technology Plan” and its International Information Bulletin; as well as the Chat Rooms on the www.mct.gov.ve/publico/foro/pi_foro.php where current national topics such as draft laws and economic and petroleum issues, etc. are discussed39.

37 Ibid., pages 96-97.38 Ibid., pages 97.39 Ibid., pages 97-98.

98

http://www.mct.gov.ve/publico/foro/pi_foro.php

The Response of the Bolivarian Republic of Venezuela to the Questionnaire did not refer to the other aspects of this recommendation. The Committee takes note of the steps taken by the country under review to proceed with the implementation of the foregoing recommendation as well as the need for the Bolivarian Republic of Venezuela to continue giving attention to the implementation of this recommendation.

4.3 Mechanisms for consultation

Recommendation

Strengthen and continue implementing procedures, as applicable, that make it possible to conduct public consultations.


a) Carry out processes to allow consultation with interested sectors with respect to the design of public policies and the preparation of draft laws, decrees or resolutions in the sphere of the Executive Branch.

b) Develop suitable mechanisms for conducting public consultations on subjects relating to the performance of administrative functions of a type other than the regulatory activity of the Administration, based on what was stated in Section 4.3.2 of this report.

c) Regulate the pertinent provisions to eliminate areas of discretion that appear to exist in some provisions now in force, as indicated in Section 4.3.2 of this report.

d) Supplement regulations, when appropriate, on participation mechanisms provided in national legislation, so as to define aspects such as the value to be given to consultations and information and the results produced and the consequences for failure to comply with obligations relating to existing consultation mechanisms, such as penalties for infringing them.

e) Design and implement programs to disseminate consultation mechanisms and, when appropriate, train and provide necessary tools for civil society and non-governmental organizations, as well as public officials and employees in the use of such mechanisms.

In its Response, the Bolivarian Republic of Venezuela presents information with respect to the above recommendation. In this regard, the Committee notes, as steps which contribute to progress in implementation of the recommendation, the use of tools that can be used for consultation, such as the links on the websites of the majority of the agencies and entities of the Venezuelan State, through which citizens find out the activities carried out by them and submit queries, complaints, suggestions and proposals through their websites40.

NOTE BY THE SECRETARIAT #74: Colombia suggests that the next two paragraphs be revised as shown below. The text that appears struck-out would be eliminated, and the underlined text would be added.

The Response of the Bolivarian Republic of Venezuela to the Questionnaire did not refer to the other aspects of this recommendation. The Committee takes note of the steps taken by the country under review to proceed with the implementation of the foregoing recommendation as well as the

40 Ibid., pages 98-100.

99

need for the Bolivarian Republic of Venezuela to continue giving attention to the implementation of this recommendation.

The country’s Response to the questionnaire did not address the rest of the elements of this recommendation. In view of this, the Committee takes note of the need that the Bolivarian Republic of Venezuela provides additional attention to its implementation

4.4 Mechanisms to encourage participation in public administration

Recommendation

Strengthen and continue implementing mechanisms to encourage civil society and non-governmental organizations to participate in public administration.


a) Strengthen and continue to implement rules and mechanisms that encourage the participation of civil society and non-governmental organizations in public administration efforts to prevent corruption. Also, consider establishing a legal structure that systematically increases, promotes and includes such aspects methods of participation other than those already anticipated, as well as different mechanisms to promote, facilitate, consolidate and assure this participation.

b) Adopt the legal provisions and measures considered appropriate to ensure that the registry of organized communities and non-governmental organizations is not used as a restrictive tool to discourage the participation of civil society and non-governmental organizations in efforts designed to prevent corruption.

c) Regulate Article 76 of the Organic Act of the Office of the Comptroller General and the National Fiscal Control System which grants civil society and non-governmental organizations the right to suggest candidates to lead fiscal control units in the institutions subject to this law.

d) Take steps towards the repeal of the “contempt laws” (See Section 4.4.2. of this report).

e) Design and implement programs and disseminate information so as to encourage participation in pubic administration and, when appropriate provide civil society, non-governmental organizations, public officials and employees with the necessary training and tools to use such mechanisms.

In its Response, the Bolivarian Republic of Venezuela presents information with respect to the above recommendation, and points out that “the entry into force of the Community Councils Law is intended to create, develop and regulate the composition of the Community Councils which are mechanisms whose purpose is to facilitate the participation, coordination and integration of different community organizations, social groups and citizens so that the citizens can directly manage public policies and projects designed to satisfy the communities’ needs and aspirations.”41

NOTE BY THE SECRETARIAT #75: Colombia suggests that the text be amended as it follows. The text to be deleted is struck through and the text to be added is underlined.

41 Ibid., pages 100-101.

100

“The Committee takes note of the steps taken by the reviewed Stated for the advancement in the implementation of the aforementioned recommendation and of the need that it continues to give attention to this matter.”

“The country’s Response to the questionnaire did not address the rest of the elements of this recommendation. In view of this, the Committee takes note of the need that the Bolivarian Republic of Venezuela provides additional attention to its implementation.”

The Response of the Bolivarian Republic of Venezuela to the Questionnaire did not refer to the other aspects of this recommendation. The Committee takes note of the steps taken by the country under review to proceed with the implementation of the foregoing recommendation as well as the need for the Bolivarian Republic of Venezuela to continue giving attention to the implementation of this recommendation.

4.5 Mechanisms for participation in the follow-up of public administration

Recommendation

Strengthen and continue implementing mechanisms that encourage civil society and non-governmen-tal organizations to participate in the follow-up of public administration.


a) Promote and continue implementing methods, when appropriate, so that those who carry out public functions will allow, help and assist civil society and non-governmental organizations to develop activities to follow-up government actions.

b) Consider the implementation of dissemination programs directed to civil society and non-governmental organizations on the aspects dealt with in sections 4.1 to 4.5.


5. ASSISTANCE AND COOPERATION (ARTICLE XIV OF THE CONVENTION)

Recommendation 5.1

Analyze the possibility of including the acts of corruption referred to in the Inter-American Convention against Corruption in bilateral legal cooperation treaties subscribed in the future, especially those involving other States Parties to the Inter-American Convention against Corruption.


Recommendation 5.2

101

Promote the harmonization of domestic legislation with the provisions of the Inter-American Convention against Corruption pertaining to extradition, and compile in a single text the provisions and standards relating to international treaties on mutual legal assistance in criminal matters.


Recommendation 5.3

Consider deepening internal coordination among the various bodies responsible for Mutual Legal Assistance.

In its Response, the Bolivarian Republic of Venezuela presents information with respect to the above recommendation. In this regard, the Committee notes, as steps which contribute to progress in implementation of the recommendation the measures taken in relation to the signing of both inter-institutional agreements, between the Supreme Court of Justice with the Ministry of Science and Technology on the one hand, and the Settlement Board of Cavendes Banco de Inversión C.A. on the other, to enable the High Court to “support and assist the Superintendency of Electronic Certification Services (SUSCERTE) to provide training and foster the use of electronic signatures in the judicial branch, and to organize programs on electronic signatures as a means of interacting with the Public Administration ( . . .)”.42


Recommendation 5.4

Determine and prioritize specific areas in which the Bolivarian Republic of Venezuela considers that technical cooperation from other States Parties is necessary to strengthen its capacity to prevent, detect, investigate and punish acts of corruption.


- Two programs supported by the Inter-American Development Bank (IADB) and the World Bank. The first is a program to modernize the court, particularly the Supreme Court of Justice, while the second seeks to support the reform of the criminal justice system by improving criminal investigation and prosecution processes in order to make this process more efficient and precise and in accordance with the state of law.43

- - The Venezuelan state’s participation in various international events, seminars and workshops to exchange experiences on issues such as the fight against corruption, actions related to probity and public ethics and the exercise of social oversight and public management; and its participation in the monitoring, leadership and coordination of the execution of the IDB’s long-term training program and the Latin American and Caribbean Organization of Latin American

42 Ibid., pages 101-102.43 Ibid., pages 102-103.

102

and Caribbean. Supreme Audit Institutions (OLACEFS), as the chair of the Organization’s Regional Training Committee.44


Recommendation 5.5

Design and implement a comprehensive information and training program for applicable authorities and officials, with the objective of ensuring that they are aware of the mutual legal assistance provisions and can provide assistance needed for investigation and/or prosecution of acts of corruption provided for in the Convention and in other treaties subscribed by the Bolivarian Republic of Venezuela .

It is also recommended that the appropriate public servants be trained to ensure the broadest possible mutual legal and technical cooperation to prevent, detect, investigate and punish acts of corruption.


Recommendation 5.6

Design and implement an information system that enables authorities of the Bolivarian Republic of Venezuela to ensure ongoing follow-up of requests for legal assistance in reference to acts of corruption and, in particular, to those covered in the Inter-American Convention against Corruption.

NOTE BY THE SECRETARIAT #76: Ecuador requests that the text be revised by adding: “The response by the Bolivarian Republic of Venezuela to the Questionnaire did not refer to this recommendation. Therefore the Committee point out that the Bolivarian Republic of Venezuela should pay special attention to its implementation.”

The Secretariat points out that this text was in fact included in all the other recommendations to which Venezuela did not make any reference.

Recommendation 5.7

Continue ongoing technical cooperation exchanges with other States Parties and consider holding discussions with other States on the most effective ways and means to prevent, detect, investigate and punish acts of corruption.


6. CENTRAL AUTHORITIES (ARTICLE XVIII OF THE CONVENTION)

The Committee did not formulate any recommendations to the Bolivarian Republic of Venezuela 44 Ibid., pages 103-104.

103

on this matter.

7. GENERAL RECOMMENDATIONS

Recommendation 7.1

Design and implement, when appropriate, training programs for public servants in charge of applying the systems, standards, measures and mechanisms considered in this report, with the objective of guaranteeing adequate knowledge, handling and implementation of the above.

In its Response, the Bolivarian Republic of Venezuela presents information with respect to the above recommendation, pointing out that “The General Directorate of Consular Affairs of the Ministry of Foreign Affairs runs a program that provides daily information on the status of the requests received.”45

Taking into account the foregoing, The Committee takes note of the need for the country under review to give additional attention to its implementation.

Recommendation 7.2

Select and develop procedures and indicators, as appropriate, which enable verification of the follow-up to the recommendations contained in this report, and communicate the results of this follow-up to the Committee through the Technical Secretariat. With this in mind, consider taking into account the list of more general indicators applicable within the Inter-American system that were available for the selection indicated by the State under review and posted on the OAS website by the Technical Secretariat of the Committee; as well, consider information derived from the review of the mechanisms developed in accordance with recommendation 7.3 below.


Recommendation 7.3

Develop, as appropriate and where they do not yet exist, procedures designed to determine the effectiveness of the systems and mechanisms mentioned in this report.


45 Ibid., page 104.

104

ANNEX

TO THE REPORT ON IMPLEMENTATION IN THE BOLIVARIAN REPUBLIC OF VENEZUELA OF THE CONVENTION PROVISIONS SELECTED FOR REVIEW IN

THE SECOND ROUND, AND ON FOLLOW-UP TO THE RECOMMENDATIONS FORMULATED TO THAT COUNTRY IN THE FIRST ROUND

INTRODUCTION

The purpose of this annex is to set forth the arguments supporting the inclusion of the paragraph transcribed below, in Section I, “Summary of Information Received” of the “Report on Implementation in the Bolivarian Republic of Venezuela of the Convention Provisions Selected for Review in the Second Round, and on Follow-up to the Recommendations Formulated to the Country in the First Round:”

“The Committee also received documents from a civil society organization. However they failed to meet the requisites set forth in Article 34 of the Committee’s Rules of Procedure and other Provisions. Hence the requirements established in Article 36 regarding verbal presentation of the documents that could have been submitted in accordance with said Article 34 in the framework of the Committee’s meetings, were not met and neither were the requirements for their publication on MESICIC’s website complied with, in accordance with the provisions of Section X of the Methodology for review in the second round.”

When considering the Draft Report on the First Round, regarding the Bolivarian Republic of Venezuela, the Committee indicated the conditions that must be fulfilled to consider contributions from civil society organizations pursuant to the Rules of Procedure and Other Provisions of the Committee (hereinafter “The Rules of Procedure”); it referred to the documents received on that occasion from civil society organizations in relation to the Bolivarian Republic of Venezuela; and it analyzed compliance with the conditions established in Article 3346 of the Rules of Procedure, in the specific case of the documents that were received from civil society organizations during the First Round on the Bolivarian Republic of Venezuela.

On that occasion the Annex II containing the considerations quoted in the above reference was incorporated in the Report on the First Round regarding the Bolivarian Republic of Venezuela and adopted by the Committee on July 30, 2004, and was posted on MESICIC’s website47.

Taking into account the foregoing, insofar as there have been no changes to date, and to what the Committee referred to in Annex II of the Report on the First Round on the Bolivarian Republic of Venezuela, this appendix will transcribe exactly what the Committee reported on the matter quoted in the reference.

Therefore this document will refer to the conditions that must be satisfied in order for civil society organizations to participate in the second round; the documents received from civil society organizations and issues regarding their participation in this review process, within the framework of the second round, in relation to the Bolivarian Republic of Venezuela; and an

46 The numbering of the articles has increased by one number due to the inclusion of a new article in the Regulations and Rules of Procedure of the Committee. Thus Article 33 (b) above is now Article 34, (b), and Article 35 above is now Article 36.47 http://www.oas.org/juridico/spanish/mec_inf_ven.pdf

105

http://www.oas.org/juridico/spanish/mec_inf_ven.pdf

analysis of compliance with the conditions envisaged for the participation of civil society organizations in the second round, in the specific case of the civil society organization from which documents related to the Bolivarian Republic of Venezuela were received.

I. CONDITIONS THAT MUST BE MET BY CIVIL SOCIETY ORGANIZATIONS IN ORDER FOR THEM TO PARTICIPATE IN THE SECOND ROUND

The Rules of Procedure48 govern the organization and activities of MESICIC’s Committee of Experts. Article 34 in particular refers to the participation of civil society organizations, while Article 36 refers to the conditions that must be met in order for them to participate in Committee meetings.

Section X of the “Methodology for review of the implementation of the provisions of the Inter-American Convention against Corruption selected for review in the Second Round and for follow up of the recommendations formulated in the First Round”49 (hereinafter “The Methodology”), refers to the participation of civil society organizations and the posting of documents received from them on MESICIC’s website.

A. CONDITIONS THAT MUST BE MET BY CONTRIBUTIONS FROM CIVIL SOCIETY ORANIZTIONS UNDER ARTICLE 34 OF THE RULES OF PROCEDURE AND OTHER PROVISIONS OF THE COMMITTEE

The Committee already expressed its opinion in relation to the first heading during the First Round. The text in quotation marks is an exact transcription of what was concluded in the First Round:

“Article 33 of the Rules of Procedure and Other Provisions of the Committee governs the participation of civil society organizations in its activities. This article lists the requirements that must be met in full by such organizations to be eligible for consideration by the Committee of Experts.

“According to the above-mentioned article, the conditions that must be met by these civil society organizations may be summarized as follows:

- Compliance with the “Guidelines for the Participation of Civil Society Organizations in OAS Activities”(CP/RES. 759 (1217/99)) (hereinafter, the “Guidelines”)”;

- Compliance with the condition “in accordance with the internal legislation of the respective State Party”;

- Compliance with the condition governing the content of documents, requiring that they contain “specific and direct information related to the questions that are referred to in the questionnaire”; and

- Compliance with the Committee’s established deadlines for the presentation of documents

“The following paragraphs offer an analysis of each one of these conditions.”

48 http://www.oas.org/juridico/spanish/mesicic_reglamento.pdf49 Document classified as SG/MESICIC/doc.171/06 http://www.oas.org/juridico/spanish/mesicic_method_IIround_sp.pdf

106

http://www.oas.org/juridico/spanish/mesicic_reglamento.pdf

1.1 Conditions set in the Guidelines for the Participation of Civil Society Organizations in OAS Activities (CP/RES. 759 (1217/99))

“The Plan of Action of the Second Summit of the Americas (1998), instructed the OAS to promote programs suitable for encouraging greater participation in public affairs by civil society. Under this mandate, several actions were taken toward devising guidelines to encourage civil society participation in OAS activities.

“One of the results of this process was the creation, under the aegis of the Organization’s Permanent Council, of a Committee that was entrusted with, inter alia, drafting a guidelines document; this proposal was later adopted by the OAS Permanent Council in resolution CP/RES.759 (1217/99), entitled Guidelines for the Participation of Civil Society Organizations in OAS Activities.’

“The adopted document sets out the forms of participation, principles, eligibility conditions, and procedures that must be observed by civil society organizations interested in participating in the activities carried out within the framework of the Organization.

“Thus, under the guidelines, civil society bodies are entitled to attend OAS activities, to make presentations, to provide information at the request of the organs, agencies, and entities of the OAS, and to provide specialized advisory services when so requested. They can also participate in operational activities relating to the design, functioning, and execution of cooperation programs, in accordance with the applicable current rules.

“In this regard, two forms of participation are defined, each with a different set of requirements and scope. The first of these two mechanisms applies to those organizations that have requested permission to participate in the day-to-day activities or business of the OAS. For this purpose, they must submit the relevant application in a communication to the OAS Secretary General. The Secretary General refers these applications to the Permanent Council’s Committee on Civil Society Participation in OAS Activities, which proceeds to analyze them, formulates the recommendations it deems pertinent, and sends its conclusions to the Permanent Council, which then adopts a final decision as it sees appropriate.

“As a part of this process, there is a set of conditions that these organizations must satisfy in order to be accepted; these include indicating its name or corporate identity and identifying the work areas that it agrees to support. Applications must also be accompanied by the following documents: articles of incorporation, statutes, most recent annual report, organizational mission statement, and financial statements from the year previous to the application, including funding sources (public and private).

“Organizations accepted by the Permanent Council by means of the above procedure are recorded in the register kept for this purpose by the General Secretariat. These organizations may appoint representatives to attend the public meetings of the Permanent Council and its subsidiary bodies. To this end, the OAS Secretariat is obliged to inform them of the calendar of public meetings and the order of business of the individual sessions.

“The second form of participation refers to requests lodged by those civil society organizations that are not recorded in the appropriate register and which refer to participation in one specific activity carried out by the OAS. In such cases, as under the previous mechanism, applications are addressed to the OAS Secretary General, who refers them to the competent Permanent Council Committee. However, unlike the first procedure, this Committee simply conducts a preliminary examination of the application and conveys it to the group or committee responsible for organizing the activity. It is that group or committee, and not the Permanent Council as in the

107

previous procedure, that is responsible for making the final decision regarding the civil society organization’s participation in the activity in question.

“In spite of the overlaps between the requirements that civil society organizations must meet in order to participate under either of the two above mechanisms, those organizations that are recorded in the register have a series of responsibilities that do not apply to those that wish merely to attend one specific event. These obligations include: attending to queries presented by the organs, agencies, and entities of the OAS; disseminating, among their members, information on the Organization’s activities; and submitting to the General Secretariat, before December 31 of each year, a report, including an executive summary, describing its participation in OAS activities over that year, indicating its financial situation and sources of funding, and listing the activities it plans to carry out over the following year. These reports are submitted to the General Secretariat, which forwards them to the Permanent Council committee responsible for such matters.

“Finally, it should be noted that being recorded in the register allows organizations to participate at specific activities, such as a conference or a meeting, by simply indicating the name of the person or persons who will be representing it on that occasion.”

1.2 Condition established in Article 33 of the Rules of Procedure and Other Provisions of the Committee with respect to “accordance with the internal legislation of the respective State Party.”

“Another of the requirements established by Article 33 of the Rules of Procedure and Other Provisions of the Committee which places restrictions on civil society organization participation in the analysis process carried out by the Committee of Experts, is that any such participation be carried out “in accordance with the internal legislation of the respective State Party.”

“It should be noted that the first draft version of the Committee’s Rules of Procedure and Other Provisions, as discussed at the first regular meeting, contained no reference to this condition. It was, however, included following an express proposal made by the delegation of the Bolivarian Republic of Venezuela during the discussion and adoption of the Rules of Procedure. During the discussion of Article 33, that delegation explained that in accordance with their domestic laws, only those civil society organizations that received no funding from foreign sources could participate.”

“At that time the Committee considered the reasons given by the delegation of Venezuela and, in light thereof, resolved to incorporate into the approved text of the Rules of Procedure and Other Provisions a condition whereby civil society participation in the review process conducted by the Committee had to be “in accordance with the internal legislation of the respective State Party.”

“With reference to this matter, in its original Response to the questionnaire, the Bolivarian Republic of Venezuela stated: ‘Finally, for Venezuela, the participation of nongovernmental organizations in activities related to the control of public affairs in the country, and therefore their participation in the follow-up mechanism for implementation of the Inter-American Convention against Corruption, is limited to civil society organizations that are national in scope, with no external subsidy.”50

“In the update of its Response, submitted within the deadline set by the Committee (March 8, 2004), it repeated this position and included a paragraph similar in scope to the previous one, and stating as follows: ‘In the update of its Response, submitted within the deadline set by the Committee (March 8, 2004), it repeated this position and included a paragraph similar in scope to the previous one, and stating as follows: “Finally, in Venezuela the participation of nongovernmental organizations in activities related to the control of public administration in the country is recognized in the Constitution, laws, and jurisprudence for civil society organizations of national scope. This is based

50 Response of the Bolivarian Republic of Venezuela to the Questionnaire, pages 84 and 85, p. 24.

108

on the jurisprudence of the Supreme Court, which grants this type of authority exclusively to Venezuelans, and in accordance with the principles of the OAS Charter in the framework of respect for sovereignty and the juridical order of the states, nonintervention, and the juridical equality of states.’”51

“As stated in the previous paragraph, attached to the updated Response (Appendix No. 1 thereto) was a ruling from the Supreme Court of Justice, Venezuela’s highest court for constitutional matters, which stated the following in connection with the matter at issue: “The representatives of civil society are Venezuelan associations, groups, and institutions (without external subsidy) which as a result of their purposes, continued presence, number of members or supporters and continuous activities, have been working from different angles of that society to improve the quality of life of Venezuelan society, without ties to the government or political parties.”52

“Taking into consideration the background to the incorporation of the in accordance with the internal legislation of the respective State Party condition into the Committee’s current Rules of Procedure; the content of the ruling handed down by Venezuela’s highest court of constitutional interpretation; and the domestic law of that State, it is necessary to conclude that, in the specific case of Venezuela, to be able to participate in the MESICIC analysis process, a civil society organization may not be a recipient of foreign funding. ”

1.3 Condition referring to the content of documents submitted by civil society organizations, requiring that they contain “specific and direct information related to the questions that are referred to in the questionnaire”

“Article 33(b) of the Rules of Procedure and Other Provisions of the Committee requires that all documents presented by civil society organizations under the aegis of this mechanism, must contain specific and direct information related to the questions that are referred to in the questionnaire.”

“This is therefore another element that must be studied in order to determine the appropriateness of any possible contribution by civil society organizations in this process, with respect to the Bolivarian Republic of Venezuela.”

1.4 Compliance with the deadlines set by the Committee for the presentation of civil society contributions

In compliance with Article 34 b) of the Rules of Procedure, during the Ninth Regular Meeting of the Committee, it was agreed that the deadline for the six States to be reviewed at the Committee’s Eleventh Regular Meeting would be November 10, 2006. The same deadline was agreed on for the presentation of documents by civil society organizations.

B. CONDITIONS THAT MUST BE MET FOR PARTICIPATION BY CIVIL SOCEITY ORGANIZATIONS IN COMMITTEE MEETINGS UNDER ARTICLE 36 OF THE RULES OF PROCEDURE

Article 36 of the Rules of Procedure governs the participation of civil society organizations in Committee meetings:

51 Updated Response of the Bolivarian Republic of Venezuela to the Questionnaire, page 49.52 Ruling of the Constitutional Court of the Supreme Tribunal of Justice of the Bolivarian Republic of Venezuela, given on the thirtieth of June, 2000. File No. 00-1728.

109

The Committee may invite or accept the request of the civil society organizations, within the framework of its meetings, to give a verbal presentation of the documents they presented in accordance with the provision in Article 34, c) of these Rules.

The Committee will invite the civil society organizations to give verbal presentations, in informal meetings, of the documents they presented in accordance with the provisions in Article 34 a) and b) of these Rules.

Pursuant to said Article 36, the conditions that must be met by civil society are subject to the conditions stipulated in Article 34 (a), (b) and (c) of the Rules of Procedure which are summarized in Section I.A of this annex.

C. CONDITIONS THAT MUST BE MET FOR THE PUBLICATION OF THE DOCUMENTS PRESENTED BY CIVIL SOCIETY ORANIZATIONS THROUGH MESICIC’S WEBSITE, ACCORDING TO THE METHODOLOGY ADOPTED BY THE COMMITTEE FOR REVIEW WITHIN THE FRAMEWORK OF THE SECOND ROUND

Section X of the Methodology establishes the conditions for the participation of civil society within the framework of the Second Round.

The first paragraph of the text of Section X of the Methodology is an exact copy of the provision contained in Article 34, b) of the Rules. In turn, the second paragraph is an exact transcription of Article 36 of the Rules which, as has been said, makes the participation of civil society organizations in Committee meetings conditional upon compliance with the requisites contained in Article 34, b) of the Rules.

The third paragraph of Section X of the Methodology establishes the conditions for posting documents presented by civil society organizations on MESICIC’s website. In states that: “Documents presented by civil organizations in accordance with the provisions of this section shall be published on the Mechanism’s website.”

Consequently, publication on MESICIC’s website of documents presented by civil society organizations is conditional upon compliance with the requisites established in Article 34, b) of the Rules.

II. DOCUMENTS RECEIVED FROM CIVIL SOCIETY ORGANIZATIONS AND WITH RESPECT TO THEIR PARTICIPATION IN THE REVIEW PROCESS WITHIN THE FRAMEWORK OF THE SECOND ROUND IN CONNECTION WITH THE BOLIVARIAN REPUBLIC OF VENEZUELA

On November 10, 2006 the Technical Secretariat received a communication from Transparency International, through which it presented the document entitled “Report by civil society: response to the questionnaire of the Committee of Experts; Second Round of the Mechanism for Follow-Up on the Implementation of the Inter-American Convention against Corruption”, prepared by Transparency International.

According to the third paragraph of Section X of the “Methodology for review of the implementation of the provisions of the Inter-American Convention against Corruption selected for review in the Second Round and for follow-up of the recommendations formulated in the First

110

Round,” on November 21, 2006 the Technical Secretariat posted the document referred to in the previous paragraph on MESICIC’s webpage.

On January 8, 2007, the Technical Secretariat received a communication dated December 22, 2006 signed by the Comptroller General of the Bolivarian Republic of Venezuela, Clodosbaldo Russián Uzcátegui, “in his capacity as President of the Ethics Council (Consejo Moral Republicano del Estado Venezolano), the body responsible, as the Central Authority according to Article XVIII of the Inter-American Convention against Corruption (CICC), for following up implementation of said Convention.” In that communication the Venezuelan State expressed its position on the scope of the provision contained in the Rules of Procedure of the Committee of Experts of MESICIC with regard to the participation of civil society organizations and, in particular, Transparency International, in the process for reviewing the specific case of the Bolivarian Republic of Venezuela. The Committee considered this subject and made a statement on the matter in Annex II of the Report on the Implementation in Venezuela of the provisions of the CICC selected for review in the First Round.

Taking the foregoing into account, the publication of the documents presented by Transparency International was suspended pending a statement from the Committee within the framework of the Eleventh Meeting on compliance with the requisites contained in Articles 34(b) and 36 of the Rules of Procedure, and in Section X of the Methodology, in the specific case of the contributions presented by the above-mentioned civil society organization, within the framework of the second round. The statement referred to has been made in this document.

III. ANALYSIS OF COMPLIANCE WITH THE CONDITIONS SET FOR THE PARTICIPATION OF CIVIL SOCIETY ORGANIZATIONS IN THE SECOND ROUND, IN THE SPECIFIC CASE OF CIVIL SOCEITY ORGANIZATIONS FROM WHICH DOCUMENTS WERE RECEIVED IN RELATION TO THE BOLIVARIAN REPUBLIC OF VENEZUELA

With regard to the participation of the civil society organization Transparency International in the review process in relation to the Bolivarian Republic of Venezuela in the second round, this Chapter will examine whether the conditions that civil society organizations must fulfill in order to participate in the review process were fulfilled; as well as the conditions provided for in Article 36 of the Rules, in order to take part in Committee meetings; and the conditions established in Section X of the Methodology for Review in the Second Round, for the publication of the documents received from civil society organizations on MESICIC’s website.

A. ANALYSIS OF COMPLIANCE WITH THE CONDITIONS SET IN ARTICLE 34 OF THE RULES OF PROCEDURES AND OTHER PROVISIONS, WITH SPECIFIC REFERENCE TO THE DOCUMENTS RECEIVED FROM CIVIL SOCIETY ORGANIZATIONS IN VENEZUELA

In order to determine whether or not participation by the civil society organization Transparency International in the Committee’s review process is permissible, the following paragraphs analyze, one by one, the conditions that, under Article 34 of the Committee’s Rules of Procedure and Other Provisions, must be met by civil society organizations wishing to participate in this process: (i) compliance with the “Guidelines for Participation by Civil Society Organizations in OAS Activities”; (ii) compliance with the condition “in accordance with the internal legislation of the respective State Party”; (iii) compliance with the condition governing the content of documents, requiring that they contain “specific and direct information related to the questions that are referred to in the questionnaire”; and (iv) compliance with the Committee’s established deadlines for the submission of documents.

111

1. Analysis of compliance with the conditions set in the Guidelines for the Participation of Civil Society Organizations in OAS Activities (CP/RES. 759 (1271/99))

As indicated in the “Guidelines for the Participation of Civil Society Organizations in OAS Activities” and section 1.1 of this appendix, there are two procedures whereby civil society participation in Organization activities can be allowed.

The first of these applies to organizations that have been duly registered, for which purpose they must follow the procedure and meet the conditions mentioned in section 1.1 of this appendix. As was noted at that point, if an organization that is already registered has submitted an application, has had it analyzed and approved by the Permanent Council committee responsible for handling such matters, and has had it adopted by the Permanent Council, it may attend a conference, meeting, or activity by simply notifying the names of the individuals who will be representing it at the event.

With respect to organizations that are not registered, the Guidelines also establish the procedure and conditions described in section 1.1 of this document, that they must meet in order to participate in specific OAS activities. According to this procedure, a request must be lodged with the OAS Secretary General, which then refers the application to the responsible Permanent Council committee. This committee conducts a preliminary examination of the request, formulates a recommendation, and forwards it to the working group responsible for organizing the meeting or conference, which then makes a final decision and accredits the participating organization, when appropriate.

According to the information available, Transparency International is a civil society organization registered in accordance with the “Guidelines for the Participation of Civil Society Organizations in OAS Activities” and therefore it fulfills the conditions foreseen in those guidelines.

However, it must be noted that even under such an assumption, the requirements set forth in paragraphs 2 to 4 below must also be met.

2. Analysis of compliance with the conditions set in Article 34 of the Rules of Procedure with respect to “accordance with the internal legislation of the respective State Party”

As indicated in the analysis in section 1.2, Venezuela’s highest constitutional court has ruled on the conditions to be met by civil society organizations in order to be considered as such, and one of those conditions was the absence of external funding.

With regard to the document presented by Transparency International, the 2005 Annual Report53

published by that organization indicates some of its funding sources, including donations from Switzerland, Germany, Finland, the Netherlands, the United Kingdom and the United States.

In light of the above remarks, it can be seen that Transparency International is in noncompliance with the condition contained in Article 34 of the Committee’s Rules of Procedure and Other Provisions, with respect to “accordance with the internal legislation of the respective State Party.”

3. Analysis of compliance with the condition of documents submitted by civil society organizations requiring that they contain specific and direct information

53 Annual Report of Transparency International-2005, page 38.

112

With regard to the condition set forth in Article 34 of the Rules of Procedures requiring that the documents submitted contain specific and direct information, the following aspects could be considered.

In the documents received by the Technical Secretariat and described in Section 2 of this annex, it was noted that the contributed made by Transparency International and related to the questionnaire consists of three sections which are all pertinent and are related to the Inter-American Convention against Corruption, and that they refer to the questions included in the questionnaire.

Taking into consideration the above reasons, it could be concluded that the documents submitted by Transparency International meet the condition set forth in Article 34 of the Rules and Procedure regarding the need that they contain specific information and their direct relation to the questions posed in the questionnaire.

4. Analysis of compliance with the deadline set by the Committee for civil society organizations to submit their contributions

As indicated in Section 1.4 of this annex, November 10, 2006 was set by the Committee within the framework of its Ninth Regular Meeting, as the deadline for the State under review and civil society to submit documents.

On November 10, 2006 the Technical Secretariat received a communication from Transparency International through which it presented the document “Report by civil society; response to the questionnaire of the Committee of Experts; Second Round of the Mechanism for Follow-Up on the Implementation of the Inter-American Convention against Corruption” prepared by Transparencia Venezuela.

Given the above considerations, it can be concluded that these documents meet the condition on the deadline for civil society to submit its contributions.

5. Conclusion on compliance with the conditions set in Article 34 of the Rules of Procedure in the specific case of the civil society organization from which documents were received in connection with the Bolivarian Republic of Venezuela .

In light of the above analysis, it can be concluded that the documents received on November 10, 2006 from Transparency International do not fulfill the conditions set forth in Article 34 of the Rules of Procedure and Other Regulations of the Committee governing the participation of civil society organizations in the review process.

B. ANALYSIS OF COMPLIANCE WITH THE CONDITIONS SET FORTH IN ARTICLE 36 OF THE COMMITTEE’S RULES OF PROCEDURE ON PARTICIPATION IN THE MEETING OF THE COMMITTEE, IN THE SPECIFIC CASE OF THE CIVIL SOCIETY ORGANIZATION FROM WHICH DOCUMENTS WERE RECEIVED IN CONNECTION WITH THE BOLIVARIAN REPUBLIC OF VENEZUELA

To determine the source of the participation of Transparency International through its national chapter Transparencia Venezuela, at the Committee meetings, the conditions set forth in Article 36 of the Rules of Procedure on compliance by civil society organizations regarding their participation in this process are set forth below.

113

It should be noted that Article 36 of the Rules of Procedure states that:

“The Committee may invite or accept the requests of the civil society organizations, within the framework of their meetings, of its meetings, to give a verbal presentation of the documents they presented in accordance with the provision in Article 34, c), of these Rules.

“The Committee will invite the civil society organizations to give verbal presentations, in informal meetings, of the documents they presented in accordance with the provisions in Article 34 a) and b) of these Rules.”

As can be seen, the participation by civil society organizations in the Committee’s meetings is subject to compliance with Article 34 of the Rules of Procedure. Since the Committee has decided that in this case neither the requisites nor the conditions established in Article 36 were complied with, it would not be in order to make the presentations envisaged there.

C. ANALYSIS OF COMPLIANCE WITH THE CONDITIONS SET IN THE METHODOLOGY FOR REVIEW IN THE SECOND ROUND ADOPTED BY THE COMMITTEE FOR PUBLICATION OF THE DOCUMENTS RECEIVED IN THE SPECIFIC CASE OF THE CIVIL SOCIETY ORGANIZATION FROM WHICH DOCUMENTS WERE RECEIVED IN CONNECTION WITH THE BOLIVARIAN REPUBLIC OF VENEZUELA

As stated above, according to Section X of the Methodology, any documents presented by civil society organizations pursuant to the terms of that section will be posted on MESICIC’s website.

Further, in order for these documents to be posted on the website, the civil society organizations must meet the requisites set forth in Article 34 of the Rules of Procedure which were analyzed above. In this case, it was stipulated that those conditions, in the case of Transparency International, regarding the review in connection with the Bolivarian Republic of Venezuela in the Second Round, are not met and thus, as stated in Section X of the Methodology, it would not be in order to post the documents on MESICIC’s website.

document.doc

114