Welcome to #FreshStartMonday!
 
"Integrity, transparency, and the fight against corruption have to be part of the culture. They have to be taught as fundamental values.” — Angel Gurría, OECD secretary general.
 

Corruption encapsulates the idea of decay, damage, deterioration, or depravity. There are different types of corruption: in the public or private sector; small-scale or large-scale corruption; and local or transnational corruption. Whether an individual person, vulnerable groups (such as women, children, people with disabilities or the elderly)[1] or society, may be affected by acts of corruption.
 
In the specific case of the public function, the Political Constitution of the Republic of Guatemala establishes that public officials are at the service of the State, which implies that they must exercise their functions in such a way that the purposes for which the State of Guatemala was created are fulfilled: the protection of the individual and the family, for the realization of the common good. Therefore, the State, through its public officials, must guarantee the inhabitants of the Republic life, liberty, justice, security, peace, and the integral development of the person. The exercise of public functions for purposes that do not lead to the common good (for example, for the personal benefit of public officials or their relatives) constitutes a deterioration and depravation of public functions; and is, consequently, corruption.
 
Corruption in the public sector can occur through cronyism, nepotism, or favoritism, and is manifested in the commission of various illegal acts, such as bribery, embezzlement, misappropriation, illegal embezzlement, influence peddling and illicit financial enrichment. It involves the detour of public funds (which should be used for the common good) to benefit a small group of people. In this sector, corruption hinders economic development, weakens democracy and the trust that should be placed in the performance of public officials, and increases poverty and inequality, resulting in serious violations of human rights[2], especially the economic, social, cultural and environmental rights (ESCR) of the population, since the lack or scarcity of public funds makes it difficult or even impossible to access and enjoy the human rights to health, education, housing and food.[3].
 
There have been efforts, both locally and internationally, to combat corruption in the public sector. For example, the Law of Probity and Responsibilities of Public Officials and Employees, Decree No. 89-2002 of the Congress of the Republic, prohibits public officials from taking advantage of their position or employment to obtain or procure special services, appointments or personal benefits, in favor of their relatives or third parties with or without remuneration; as well as to use the power conferred by the exercise of the position or employment in State entities, autonomous or decentralized, to make, participate or influence decision-making for personal benefit or that of third parties. Likewise, Guatemala approved Decree No. 31-2012 of the Congress of the Republic, Law Against Corruption, in which it amended the Criminal Code to stiffen penalties for existing crimes and to include other crimes. Finally, Guatemala is a party to the United Nations Convention Against Corruption[4] and the Inter-American Convention Against Corruption[5].

Both Conventions make it mandatory for States to implement preventive measures against corruption, and to criminalize certain acts of corruption in their domestic laws. The United Nations Convention Against Corruption states that each State Party shall formulate, implement or maintain effective and coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability; and that each State Party shall ensure the existence of a body or bodies responsible for the prevention of corruption; and obliges States Parties to adopt (or maintain and strengthen) systems for the recruitment, hiring, retention, promotion and retirement of public employees that are based on principles of efficiency and transparency and on objective criteria such as merit, equity and aptitude

Meanwhile, the Inter-American Convention Against Corruption indicates that States Parties are to consider the applicability of measures aimed at creating, maintaining and strengthening, among other aspects: (i) standards of conduct for the correct, honorable and proper fulfillment of public functions, aimed at preventing conflicts of interest and ensuring the preservation and proper use of the resources assigned to public officials in the performance of their duties; (ii) systems for the declaration of income, assets and liabilities by persons performing public functions in the positions established by law and for the publication of such declarations when appropriate; and (iii) systems for the hiring of public officials and for the procurement of goods and services by the State that ensure the publicity, equity and efficiency of such systems.

Therefore, due to the devastating effects of corruption, especially the serious violations of human rights, it is imperative to understand and combat it.
 
At Carrillo y Asociados we are committed to contribute to strengthen the rule of law in Guatemala.

For further information please contact:

• Luis Mazariegos  luis.mazariegos@carrillolaw.com
• Ricardo Recinos  ricardo.recinos@carrillolaw.com
• Amanda Trejo   amanda.trejo@carrillolaw.com

[1] Regarding the effects of corruption in disadvantaged sectors, the Inter-American Commission on Human Rights has indicated:"[...] On the one hand, in these contexts, isolated corruption has an aggravated effect on disadvantaged sectors that may be subject to extortive practices of various kinds. However, cases of grand corruption and macro-corruption also have an impact on these groups, since many times the funds that are stolen from the public treasury are precisely those destined to these priority sectors of the State's social policies. [...]". Inter-American Commission on Human Rights, Corruption and Human Rights: Inter-American Standards, 2019, p. 60, available at http://www.oas.org/es/cidh/informes/pdfs/CorrupcionDDHHES.pdfThe consultation was held on June 3, 2022.

[2] In its Resolution 1/17, Human Rights and the Fight against Impunity and Corruption, of September 12, 2017, available at http://www.oas.org/es/cidh/decisiones/pdf/Resolucion-1-17-es.pdf (consultation was held on June 3, 2022), the Inter-American Commission on Human Rights affirmed that the fight against corruption has an unequivocal relationship with the exercise and enjoyment of human rights.

[3] Approved by the Congress of the Republic through Decree No. 91-2005, published in the Official Gazette on December 21, 2005. http://www.oas.org/es/cidh/informes/pdfs/venezuela2018-es.pdf(consultation was held on June 3, 2022)..

[4] Approved by the Congress of the Republic through Decree No. 91-2005, published in the Official Gazette on December 21, 2005.

[5] Approved by the Congress of the Republic through Decree No. 15-2001, published in the Official Gazette on May 31, 2001.