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MECHANISM FOR FOLLOW-UP ON THE SG/MESICIC/doc.186/06 rev.1IMPLEMENTATION OF THE INTER-AMERICAN 25 September 2006CONVENTION AGAINST CORRUPTION Original: English Tenth Meeting of the Committee of ExpertsDecember 11-16, 2006Washington, DC.

HONDURAS

REVISED VERSION OF THE DRAFT PRELIMINARY REPORT

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

CORRUPTION

DRAFT PRELIMINARY REPORT ON IMPLEMENTATION IN THE REPUBLIC OF HONDURAS 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 VERSIONPURSUANT TO 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)-November, 2006-

NOTES FROMTHE SECRETARIAT

1. The text of the draft that is the subject of observations or comments by the members of the review subgroup (Argentina and the United States), or by the country under review (Honduras), are identified by Notes from the Secretariat.

2. The observations or comments made by the members of the review subgroup or the country under review appear in italics.

3. Suggested changes to the draft appear in bold and underlined, in the case of text that is to be included, and in strikethrough, in the case of text that is to be deleted

4. The United States made its observations to the English draft through “track changes”. Those changes that did not affect the substance of the draft and which were only minor corrections or style changes, have already been incorporated herein. The remaining suggestions are indicated through Notes from the Secretariat in the manner indicated above.

5. Argentina presented its comments to the draft report in a document containing a chapter with requests for clarification addressed to Honduras and in certain cases to the Secretariat; a chapter including suggested changes to the recommendations section of the draft; and an additional document discussing the outline of the section on follow-up to the recommendations from the First Round of Review. The suggested changes to the recommendations section, as well as the comments on the follow-up section, have been

1 This draft preliminary report was prepared in accordance with the provisions of Articles 23 (a), 27 and 29 of the Committee's Rules of Procedure (Document SG/MESICIC/doc. 9/04 rev.2), as well as the methodology for reviewing implementation of the Convention provisions selected in the framework of the second round (Document SG/MESICIC/doc. 171/06 rev.2) and the format for country reports (Document SG/MESICIC/doc. 173/06 rev. 1), which the Committee adopted at its ninth meeting, held at OAS headquarters in Washington DC from March 27 to 31, 2006.

incorporated herein, and are identified through notes from the Secretariat, with the exception of those changes which were minor corrections and which did not affect the content of the report. The chapter on questions has been maintained in a separate document, and the responses of Honduras to those questions have been incorporated into that document.

INTRODUCTION

1. Contents of the Report

This report presents, first, a review of implementation in the Republic of Honduras of the provisions of the Inter-American Convention against Corruption selected by the Committee of Experts of the Follow-up Mechanism (MESICIC) for review in the second round: Article III, paragraphs 5 and 8, and Article VI.

Second, the report will examine follow-up to the recommendations that were formulated to the Republic of Honduras by the MESICIC Committee of Experts in the first round, which are contained in the report on that country adopted by the Committee at its Seventh meeting, and published at the following web page: http://www.oas.org/juridico/english/mec_rep_hnd.pdf

2. Ratification of the Convention and adherence to the Mechanism

According to the official registry of the OAS General Secretariat, the Republic of Honduras ratified the Inter-American Convention against Corruption on May 25, 1998, and deposited the respective instrument of ratification on June 2, 1998.

In addition, the Republic of Honduras signed the Declaration on the Mechanism of Follow-up on Implementation of the Inter-American Convention against Corruption on December 18, 2001.

I. SUMMARY OF THE INFORMATION RECEIVED

1. Response of the Republic of Honduras

The Committee wishes to acknowledge the cooperation that it received throughout the review process from the Republic of Honduras, and in particular from the Superior Court of Accounts, 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 Republic of Honduras sent the provisions and documents it considered pertinent.

For its review, the Committee took into account the information provided by the Republic of Honduras up to July 17, 2006, and that requested by the Secretariat and the members of the review subgroup, to carry out its functions in keeping with its Rules of Procedure and Other Provisions.

2. Documents received from civil society organizations.

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http://www.oas.org/juridico/english/mec_rep_hnd.pdf

The Committee also received, within the deadline established in the Calendar for the Second Round adopted at its Ninth Meeting,2 a document from the “Permanent Forum of Civil Society Organizations” (FPOSC). In addition, the Committee also received a document prepared by the “Association for Participative Citizenship” (ACI PARTICIPA) and presented by Transparency International.3

NOTE FROM THE SECRETARIAT # 1:

The United States makes the following comment with respect to this section:

“The Secretariat should also cite the WB/IDB-CPAR and the OAS “Adapting Honduras Criminal Legislation to the IACAC,” as both are cited liberally in the report, and add much value to the conclusions.”

The Secretariat has included the language which follows this NOTE in bold and underlined.

3. Other documents

The Committee also consulted the February, 2005 Country Procurement Assessment Report, prepared by the Inter-American Development Bank and the World Bank (“WB/IDB-CPAR”). 4

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.


Honduras suggests deleting the words which appear in strikethrough in the following paragraph.

The Secretariat notes that the questionnaire refers to the “main systems” and that this standard language was used in the reports in the first round.

The Republic of Honduras has a set of provisions related to the above systems, among which the following provisions related to the principal systems should be noted:

- Constitutional provisions applicable to public servants generally, such as Article 256, which provides that the Civil Service Regime regulates the relationships of employment and public functions between the State and public servants, grounded in the principles of suitability, efficiency and honesty, and that personnel management shall be based on the merit system; Article 257, which provides that the law shall regulate the Civil Service and in particular, the conditions for entry into the public service, merit and aptitude based promotions and advancement, guarantee of permanence, DOCUMENT.DOC

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transfers, suspensions and guarantees, the duties of public servants and appeals with respect to decisions that affect them; and Article 259, which extends the above-mentioned constitutional provisions to employees of the decentralized and municipal institutions.


The United States suggests replacing the work “application” with the word “enforcement” in the following paragraph.

- Statutory provisions applicable to employees of the Executive branch, such as the Civil Service Law, Decree Number 126 of 1968, which has among its stated purposes those of: creating the administrative career system based on merit (Art. 1(1)), offering equal opportunities for all citizens to serve the public administration based on suitability and aptitudes (Art. 1(2)), training, making responsible, protecting and dignifying public servants (Art. 1(3)), and increasing the efficiency of the public service (Art. 1(4)). The Law establishes the Directorate General of the Service as the body responsible for its application enforcement (Articles 5 and 7); and creates the Civil Service Council as the body responsible for development of the personnel administration policy as well as for hearing and resolving disputes that arise with respect to the application enforcement of the Law and its Regulation (Article 8), including decisions taken by the Directorate General (Article 10).

The above Law also contains other provisions related to entry into service in the Executive branch, such as Article 11, which contains a list of entry requirements; Article 12, which requires the Directorate General to prepare and maintain a Post Classification Manual containing the description of all posts as well as the corresponding duties, responsibilities, and the most important requirements for each post; Article 3, which contains exceptions to the application of the law;5 Article 24, which requires the Directorate General to publicize vacancies that are to be filled; and Article 28, which provides that the Directorate General shall select the candidates to fill vacancies based on the following order of priorities: (1) those with the right to promotion in the same class and from the same dependency, (2) those with the right to promotion in the same class, but a different dependency, (3) those on the list for re-entry into service, and (4) candidates to enter service.

- Regulatory provisions applicable to employees of the Executive branch, such as those found in the Regulation of the Civil Service Law, Agreement Number 175 of 1976, which expands upon the provisions of the corresponding Law and contains detailed provisions with respect to the personnel selection regime for the Executive. Among its provisions, the following should be highlighted: Article 1, which details those who are considered in the Service through Competition “Servicio por Oposición”, and to whom the provisions of the Law and Regulation apply; Article 21, which contains the list of those to whom the Civil Service Law and Regulation do not apply;6 Article 34, which establishes the Department of Recruitment and Selection as a department within the Directorate General of the Civil Service, responsible for administration of the personnel system as well as for personnel management (See Article 35); Article 107, which requires that all Service by Opposition posts must be filled through Suitability Exams “Exámenes de Idoneidad” or by means of Background Comparison “Oposición de Antecedentes”; Articles 111 through 121, which outline the selection procedure; Article 112, which requires the publication of vacancies to be filled at least thirty days in advance;

- Statutory provisions applicable to the employees of the Legislative branch, such as the Labor Statute for Legislative Branch Employees,7 Decree Number 151 of 1993, which provides that the

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selection of personnel is handled by the Personnel Office of the National Congress (Article 9), and sets requirements for applying for positions in the Legislative branch (Article 4); and contains exceptions to the applicability of the Statute (Article 3).


The United States suggests replacing the work “application” with the word “enforcement” in the following paragraph.

- Statutory provisions applicable to employees of the Judicial branch, such as those contained in the Law on Judicial Careers, Decree Number 953 of 1972, Article 2 of which states that the selection of employees based on personal merit and equal opportunities stimulates the entry of the most qualified individuals; Articles 8 and 9, which create the Council on Judicial Careers as a dependency of the Supreme Court of Justice, and charge it with assisting with personnel management policies as well as hearing and resolving conflicts or complaints that arise as a result of the application of this Law and its Regulation; Article 10, which creates the Directorate of Personnel Administration headed by a Director appointed by the Supreme Court of Justice, and makes the Directorate responsible for the application enforcement of the Law and Regulation; and Article 13, which creates the Personnel Selection Commission is an auxiliary body to the Directorate of Personnel Administration.


Honduras suggests deleting the words “individuals” and “any”, which appear in strikethrough below, and replacing them with the words “persons” and “specified”, which appear in bold and underlined.

The foregoing law also includes provisions related to entry into service in the Judicial branch, such as Article 14, which requires the Directorate of Personnel Administration to prepare and maintain a Manual of Post Classifications, containing the description of all posts as well as the corresponding duties, responsibilities, and the most important requirements for each; Article 23, which contains a list of requirements for entry into Judicial service; Article 24, which prohibits certain persons individuals from holding specified any positions in the Judicial branch; Article 27, which requires publication of the vacancy along with the requirements for the post; Articles 28, 29 and 30, which address the percentage ranking for qualified applicants, the process whereby the Supreme Court appoints the winning candidate from among the three qualified candidates selected by the Personnel Selection Commission, and the priority list based on which the Commission selects the three candidates to be submitted to the Supreme Court for appointment; and Article 33, which allows the Supreme Court to make emergency appointments to be made in the event that serious damage would occur if the appointment were (?) not made.

- Regulatory provisions applicable to employees of the judicial branch, such as those contained in the Regulation of the Law on Judicial Careers, issued in 1987, which expands upon the provisions of the corresponding Law and provides additional details on the personnel selection regime for the Judiciary. Among its provisions, the following should be noted: Articles 9 to 19, which divide posts in this branch into Regular Service, to which the Law and Regulation apply, and Exempted Service,8

with respect to which only those provisions in the Law and Regulation regarding duties,

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incompatibilities, and rights apply; and Articles 150 and 151, which provide for emergency and interim appointments.

- Regulatory provisions applicable to the bodies charged with oversight of the personnel administration regime, such as the Internal Regulation of the Council of Judicial Careers, issued in 1998, Article 7 of which sets forth the functions of the Council; and Articles 24 to 34, which establish, inter alia, the requirements for filing complaints regarding the personnel administration and selection system, and the time frame within which and the process whereby the Council resolves those complaints.

- Legal provisions applicable to oversight bodies, such as the Statute of Public Ministry Careers, Agreement Number 002 of 1994, Articles 3 and 4, which provide for a merit-based selection and recruitment system; Article 6, which excludes certain posts from the Public Ministry Career System;9

Article 7, which provides that the Personnel Council and the Human Resources Division are organs of the Career System; Article 10, which sets out the functions of the Council; Article 14, which makes the Human Resources Division the body responsible for, inter alia, creating the standards and criteria for personnel selection, carrying out the competitions for posts, and implementing a training system to update knowledge by those subject to the Statute of the functions of their post; and Articles 21 to 23, which set out the requirements for and impediments to entry into service.


The changes proposed by Honduras to the following paragraph only affect the Spanish version.

- Other provisions applicable to oversight bodies, such as the Regimen of Careers of Officials and Employees of the Superior Court of Accounts, issued by the Superior Court of Accounts in November, 2003, which calls for a merit-based selection system (Article 2); establishes requirements for and impediments to entering service (Articles 28 and 29, respectively); and establishes the Human Resources Directorate as the entity responsible for personnel management (Article 7), including inter alia, the preparation of a Post Classification Manual and carrying out competitions for posts and training programs (Article 8). In addition, the Regimen contains detailed provisions on the personnel selection process, such as Articles 22 to 24, which provide for internal or external competitions; and Article 27, which provides for emergency appointments.

- Other statutory provisions allowing challenges to be made with respect to the selection process in the absence of a specific law, such as the Administrative Procedure Law, Decree Number 152 of 1987, which allows interested parties (?) to seek to have(?) any administrative action which is contrary to law voided (?) (Article 35); and the Law on Contentious Administrative Jurisdiction, Decree Number 189 of 1987, which allows for judicial review of administrative actions, provided that all administrative means of review have been exhausted (Article 28).

1.1.2. Adequacy of the legal framework and/or other measures.


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The United States makes the following comment with respect to the paragraph that follows this NOTE:

“In the past, proposed legislation has been cited only in footnotes – this practice should continue, since we have no way of knowing whether a bill will pass, nor what its final form will be.”

Honduras notes as follows in response to the foregoing comment:

“This kind of progress has already been dealt with in the body text of other Reports. Additionally, the comment is short and to the point, in that what it demonstrates is the initiative of the country undergoing analysis to remedy the shortcomings of the current Civil Service Law. Irrespective of this, we will accept a Recommendation from the Committee on this point.”

With respect to the constitutional and legal provisions that refer to the principal systems of government hiring that the Committee has examined, and based on the information available to it, they constitute, as a whole, a body of measures relevant to promoting the purposes of the Convention. In addition, the Committee notes the initiative demonstrated by the country under review to remedy any existing deficiencies via the Public Servants Regime Bill, which is currently before Congress.

Notwithstanding the foregoing, the Committee considers it appropriate to formulate certain observations on the advisability of developing and complementing certain legal provisions that refer to those principal systems.

With respect to the Executive branch, the Committee considers it convenient to formulate the following observations regarding the existing Civil Service Law and its Regulation:


Honduras makes the following comment with respect to the paragraph that follows this NOTE:

“The suggestion of formulating a recommendation is not, in Honduras’s view, appropriate, since the goal is to recognize and protect the administrative career, empowering, on an equal footing, both those employees already in that career and those re-entering it. The final paragraph of Article 256 of the Constitution of the Republic stipulates that the State is to protect its servants within the administrative career. We agree with the comments of United States of America and the comment made by the Republic of Argentina regarding modification. (Page 5, paragraph 4.)”

Honduras makes a further proposed modification which only affects the Spanish version.

- The Committee is concerned that Article 28 of the Law, which provides that vacancies are to be filled in accordance with a priority list, beginning with those who are already in service, then with those waiting to re-enter service, and ending finally with those who are still waiting to enter service, does not guarantee an equal opportunity to all candidates to compete for public posts based on merit, but rather, gives preferential treatment to existing and former government employees. The Committee will formulate a recommendation in this regard. (See Recommendation 1.1.1(a) in Section 1 of Chapter III of this report)


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“We join in the recommendation to make available to the public the various post description manuals. And we recommend in addition that said publicly available documents include the following (for inclusion in the appropriate recommendation section of this report):

1) Notification to employees and applicants of the rights and protections afforded to them in the laws and regulations of Republic of Honduras.

2) Notification of the proper offices, with respective contact information, and the proper form of making a complaint to or an appeal of a determination of an oversight or administrative body.

3) Notification to employees of the Ethical obligations and duties of public service imposed on employees and penalties for violation. Including the standards of conduct for public employees.

4) Notification to employees of the duty to report public corruption with information on the form of the report and to which office to deliver the report.”

Honduras notes as follows with respect to the foregoing comment:

“We will accept the recommendation formulated in this regard, particularly regarding the publication of the parts of the Post Classification Manual that it is determined that state employees and the general public should be aware of.

As regards the different notifications recommended, these are a part of procedures set out in the Law on Administrative Procedure, other laws, and regulations; these laws are known to the general public by reason of their publication. In procedural matters, the word “notification” means to tell interested parties about a resolution adopted during a formality or matter; thus, the word “inform” or communicate” should be used instead.”

The Secretariat notes that the proposals by the United States could form the basis for a modified measure “b” in recommendation 1.1.1. See NOTE # 9A, in Chapter III, below.

Honduras also proposes replacing the words “the members of the public”, which appear below in strikethrough with the words “the public in general”, which appear in bold and underlined in the paragraph that follows this NOTE.

Honduras also notes the following with respect to the concern expressed in the paragraph below:

“As regards the concern that the Post Description Manual has not been made public and is not easily accessible for members of the public who wish to consult it, we note that we have no problems with its partial or complete publication, but we believe it would be better to publish the important parts and those dealing with personnel selection..”

- Although the Law charges the General Directorate with the maintenance of the Post Classification Manual, there is no indication that this Manual is made public, or that it is readily accessible to the public in general the members of the public upon request. (See Recommendation 1.1.1(b) in Section 1 of Chapter III of this report)

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“We join the recommendation that the body responsible for hearing and resolving disputes be given the explicit authority to overturn results of a particular decision, in the event that some aspect thereof was carried out contrary to the Law or its Regulation.

Additionally, we would recommend consideration of the creation of an authority to allow audits of competitions, appointments, hiring, promotions, discipline, and dismissals by the Government of Honduras (for inclusion in the appropriate recommendation section of this report). Audits would reveal questionable practices and allow for administrative remedial measures such as increased training or non-criminal sanctions.”


“We will accept a recommendation from the Secretariat or the Committee, as appropriate.

As regards the recommendation, we believe that the General Internal Control Standards contain adequate provisions for checking the transparency of competitions and the other components of a professional career regime and that the internal auditing units and other oversight bodies involved in those processes can and must assume that function; nevertheless, we will accept the recommendation made by the Committee as regards the analysis of those systems.”

Honduras suggests replacing the word “methods” with “procedures”. In addition, Honduras makes the following comment with respect to the paragraph under discussion:

“Under Article 10, paragraphs (a) and (b) of the Law, the Council is empowered to annul the results; nevertheless, we concur that this power is not expressly stated, and so we believe the recommendation should be directed at making the corresponding amendment.”

- Although the Committee notes the existence of procedures methods of challenging decisions taken in the Executive branch at both the administrative and judicial levels, which conceivably encompass decisions taken with respect to the personnel selection process, the Committee notes an absence of provisions explicitly granting the Civil Service Council, as the body responsible for hearing and resolving disputes, the power to overturn the results of a particular competition, in the event that some aspect thereof was carried out contrary to the Law or its Regulation. (See Recommendation 1.1.1(c) in Section 1 of Chapter III of this report)

- The Committee is of the view that the exception contained in Article 22 of the Law, which allows posts to be filled through Background Comparison “Oposición de Antecedentes” rather than through competitive examination “exámenes por oposición” in those cases where it is not convenient to do so due to the specialized knowledge required of the post or due to its nature, could be complemented by objective criteria which allow a determination to be made as to why a particular applicant was

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selected. This would also allow for challenges to be made with respect to the selection process for those posts. The Committee will formulate a recommendation in this regard. (See Recommendation 1.1.1(d) in Section 1 of Chapter III of this report)



“Is there a distinction in the law and in practice between a Congressman’s personal staff and other Congressional employees?”


“There are no distinctions. Employees are appointed by agreement or by means of professional service contracts or interim contracts.”

The existing law covering employees of the Legislative branch, the Statute for Legislative Employees, is insufficient to accomplish the objectives of the Convention, in that it does not contain any detailed provisions regarding the personnel selection process; provide for personnel selection to be carried out based on merit; nor does it provide any mechanism for the publication of vacancies.


Honduras suggests replacing the word “method” with the word “procedure” in the paragraph that follows this NOTE. In addition, Honduras makes the following observation with respect to that same paragraph:

“In speaking about the Labor Statute for Legislative Branch Employees, the Secretariat states that this statute “is inadequate for pursuit of the Convention’s purposes.” While this may be true, it must be borne in mind that the statute in question was issued in 1993 and, prior to that year, there were no legal provisions to protect public servants employed by the legislature: they were liable for dismissal without receiving benefit payments or indemnifications. It establishes a legal framework and, even with the modifications that are necessary, we believe progress has been made. The comment made could lead to a change in the language used to address that point.”

Similarly, although the Statute names the Personnel Office of the National Congress as responsible for the personnel selection process, as noted above in section 1.1.1, there appears to be an absence of provisions regulating how this Office should function vis-à-vis the selection of personnel. Furthermore, the Statute does not provide any procedure method for challenging decisions taken in particular cases, or any aspect of the selection process. Finally, it appears that despite Article 2 of the Statute, which provides that the Statute will regulate the employment relationship of Legislative branch employees, as established by the Statute and its Regulation, it does not appear that any such Regulation has been issued. Bearing these considerations in mind, the Committee will formulate the corresponding recommendations. (See Recommendations 1.1.2(a) to 1.1.12(d) in Section 1 of Chapter III of this report)

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The United States suggests replacing the work “application” with the word “enforcement” in the paragraph that follows this NOTE.

Honduras notes the following with respect to this same paragraph:

“We repeat the comment made above, in which we state that the goal is to empower the judicial career. It is also important to note that the judicial branch, through the Selection Tribunal, conducts the selection process for judicial positions by means of competitive processes (oposiciones), which entail several phases, including merit-based competitions, the results of which (and others) are published so that the candidates can remain informed. It should be noted that judicial experience is not a determining factor.”

With respect to the judicial branch, the Committee considers that the existence and application enforcement of the Law on Judicial Careers and its Regulation constitute important progress towards achieving the purposes of the Convention. Nevertheless, the Committee believes that Honduras could further improve and enhance the system for the Judiciary by clarifying certain aspects of the personnel selection system by taking the following considerations into account.



“’Hiring from within’ is not necessarily a bad thing when done within specified and transparent parameters. Current employees can bring historical/institutional knowledge that can be beneficial to a government agency. More important is whether Honduras has set criteria for when this can be done.”


“We agree with the comment. It should be noted that the preference given to current employees or those on service is based on the protection of those employees and their continuity within the administrative career. Moreover, the State is also obliged to protect its civil servants within the administrative career, in compliance with the terms of Article 256, last paragraph, of the Constitution of the Republic.

As regards the different processes for candidate selection – the judicial branch, for example, through its Selection Tribunal, carries out the selection process by means of competitions for jurisdictional positions; these entail several phases, including merit-based competitions, the results of which are published so that all the candidates are duly informed. It should be noted that judicial experience is not a determining factor.”

- Although the Law on Judicial Careers and its Regulation generally provide for the selection of candidates through a merit-based process, the Committee considers that not unlike the selection system for the Executive branch, the preference given to present or past employees for posts, resulting from the priority ranking carried out by the Personnel Selection Committee, results in

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unequal treatment for different candidates. The Committee will formulate a recommendation in this regard. (See Recommendation 1.1.3(a) in Section 1 of Chapter III of this report)

- Similarly, the Committee is concerned with the wide discretion that the Personnel Selection Commission has with respect to the three names that it supplies to the Supreme Court for appointment from among all qualified candidates. For instance, there is no rule stating that the Commission will use objective criteria in selecting these three candidates, such as naming the three qualified candidates with the highest percentage score. The Committee will formulate a recommendation in this regard. (See Recommendation 1.1.3(b) in Section 1 of Chapter III of this report)

- In addition, the Committee notes an absence of an express provision requiring the Post Classification Manual that is prepared and maintained by the Directorate of the Service to be made public, or that members of the public be readily granted access thereto. The Committee will formulate a recommendation in this regard. (See Recommendation 1.1.3(c) in Section 1 of Chapter III of this report)


The United States suggests replacing the work “application” with the word “enforcement” in the following three paragraphs of the draft report.

- Finally, the Committee notes an absence of provisions granting the Council on Judicial Careers, as the body charged with hearing and resolving disputes that arise as a result of the application enforcement of the Law or Regulation of Judicial Careers, or challenges to decisions taken by the Directorate of the Service, the power to overturn decisions taken in respect to the selection process. This is true of the Law and its Regulation, as well as the Internal Regulation of the Council itself. In this regard, the Committee will formulate the appropriate recommendation. (See Recommendation 1.1.3(d) in Section 1 of Chapter III of this report)


Honduras notes as follows with respect to the paragraph that follows this NOTE:

“The Public Prosecution Service (MP) does not appear on the list of government agencies exempt from application of the Civil Service Law, since it was created after that legislation came into effect. The Public Prosecution Service is considered a constitutional organ, not attached to any specific branch of government and enjoying financial and administrative autonomy; consequently, it can establish its own staff rules and the provisions of the Civil Service Law are thus not applicable to it.”

Concerning positions in the Public Ministry, the Committee notes the existence of a specific Statute addressing personnel selection for those posts. However, the Committee feels the need to point out, that the Public Ministry is not listed as one of the organs of government exempted from application enforcement of the Civil Service Law. Therefore it is unclear whether the personnel selection provisions of the Civil Service Law apply to posts within the Public Ministry, with respect to those aspects not addressed by the Statute of Public Ministry Careers.

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By way of example, although the Statute provides that the Personnel Council and the Human Resources Division are the oversight bodies responsible for developing and applying the personnel administration policy and its application enforcement, respectively, Article 10 only authorizes the Personnel Council to resolve appeals presented with respect to disciplinary measures. Thus, outside of the provisions of the Administrative Procedure Law and the Law of Contentious Administrative Jurisdiction, no provision is made for either of the two oversight bodies to receive and/or resolve disputes that might arise with respect to the application enforcement of the personnel selection system. In this regard, the Committee will formulate the appropriate recommendation. (See Recommendation 1.1.4 in Section 1 of Chapter III of this report)



“We do not agree with the suggested Recommendation, since it goes against the administrative career of Tribunal employees and officers who know they can aspire to vacancies and that an external competition will only be organized if there are no internal candidates meeting the requirements set for the position. The objective of the Regime is to protect and encourage the administrative career, together with its functional efficiency and stability (Article 2, Nos. 1, 2, 3, and 5 of the Regime).”

With respect to the Regimen for Careers of Officials and Employees of the Superior Court of Accounts, and notwithstanding that the Regimen calls for a merit-based selection system, Article 24 provides external competitions for posts are only held when it is not possible to fill a position through an internal competition. This in effect gives current employees preference over those who are seeking to enter service, and goes against the principal of equity enshrined in the Convention. In this regard the Committee will formulate a recommendation. (See Recommendation 1.1.5(a) in Section 1 of Chapter III of this report)



“While it is true that there is no express provision regarding challenges in the selection process, all resolutions adopted by the plenary of the Tribunal or by its authorities may be challenged and amended within the Tribunal, or applications may be filed against them before the administrative courts, as provided for in the Law on Administrative Procedure..”

- In addition, the Committee notes an absence of provisions specifically allowing for challenges to be made to decisions taken with respect to the selection process. The Committee will formulate a recommendation in this regard. (See Recommendation 1.1.5(b) in Section 1 of Chapter III of this report)


With respect to the paragraph that follows this NOTE, the United States suggests deleting recommendation 1.1.6, and referring instead to general recommendation 4.1 in Section 4.

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In this regard, the Secretariat notes that recommendation 1.1.6 refers not only to training programs, but also to induction programs for those recently hired into public service. Therefore, in order to maintain this idea, (1) general recommendation 4.1 could be adjusted to include this idea (in order to maintain uniformity, this should be done in all reports); or (2) recommendation 1.1.6 could remain.

Honduras makes the following observation with respect to the paragraph under discussion:

“Although we recognize there are no training programs for those responsible for running the selection and staffing processes, there are training and induction programs for individuals who have recently entered public service. For example: a) in the Public Prosecution Service this training is managed by Directorate of Human Resources through the Department of Training, and by the Department of Curricular Development; b) in the Superior Court of Accounts all personnel, particularly those performing auditing functions, must pass through, prior to entry, an induction process run by the Directorate of Human Resources, through the Department of Training and the corresponding auditing directorates, together with the training given by the Directorate of Probity and Ethics.”

- Finally, the Committee notes an absence of training programs for those responsible for managing the selection and staffing processes, as well as an absence of training and induction programs for those persons recently hired into public service. In this regard, the Committee will formulate a recommendation. (See recommendation 1.1.6 in Section 1 of Chapter III of this Report)

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

With respect to results in this field, the response of the country under review states that “There are no statistics in the country showing the results.”10 The response further notes that “In compliance with Article 4 of the Organic Budget Law requiring that the financial administration system of the Public Sector functions in a coordinated manner with other subsystems, including the Human Resource Management subsystem, the Integrated System for Human Resource Management of the Honduras Public Sector (SIARH) is being developed in order to guarantee a seamless process covering human resource requirements.”11


The United States suggests replacing the work “application” with the word “enforcement” in the paragraph that follows this NOTE.

Honduras notes as follows with respect to the paragraph under discussion:

“We do not agree with the claim in the second paragraph that “the Civil Service Law and its Regulations are not being applied” because it is not true: application is underway, albeit on a partial basis, and consequently we suggest the following change: “While the Committee welcomes the development of the Integrated System for Human Resource Management, it is concerned with the currently partial application of the Civil Service Law and its Regulations.”

Accordingly, the Secretariat notes that the first sentence of the paragraph could read in either of the following ways:

14

* While the Committee welcomes the development of the Integrated System for Human Resource Management, it is concerned with the current partial application of the Civil Service Law and its Regulation.

* While the Committee welcomes the development of the Integrated System for Human Resource Management, it is concerned with the current lack of enforcement of the Civil Service Law and its Regulation.

While the Committee welcomes the development of the Integrated System for Human Resource Management, it is concerned with the current partial application of the / lack of application enforcement of the Civil Service Law and its Regulation. In this regard, ACI PARTICIPA notes in its submission that “In Honduras, the principal obstacle to the system of human resource administration in general, and in particular, the system of Career Post Appointments, is not the absence of a legal framework, but the lack of application enforcement of the laws.”12 Telling of this situation is the fact that according to the information provided by ACI PARTICIPA,13 although the last competition for posts in the Judicial branch took place in November, 2005, the last competition that was held for posts in the Executive branch pursuant to either the Civil Service Law or its Regulation, was in October, 1976.


The United States makes the following comment with respect to paragraph immediately following this NOTE:

“If it’s a good law and is applied, is age an issue? We don’t think this is necessary – as the focus should be on application of the law and/or need for revision.”


“We agree with the comment as regards the age of the Law. In the specific case of our country, the authorities have decided it is necessary to modernize the system and make substantial reforms to the regime or system.”

Honduras suggests replacing the word “the” with the words “the noted” in the paragraph under discussion.

In addition, Honduras notes as follows with respect to the paragraph under discussion:

“We also believe that the passage of time is not a determining factor in the enforcement or non-enforcement of law, and so we hold the paragraph in question could be drafted as follows: “In addition, both the response of the country under review and the Permanent Forum for Civil Society Organizations allude to the fact that the noted law needs to be adjusted to the new conditions in order to allow the creation of the administrative career,”

The Secretariat notes that the paragraph has been modified as suggested by Honduras.

In addition, both the response of the country under review and the Permanent Forum for Civil Society Organizations allude to the fact that near obsolescence of the noted the law needs to be adjusted to the new conditions in order to allow the creation of the administrative career, given that it dates

15

back to 1968.14 The Committee does note, however, the willingness of the country under review to remedy the current situation, as reflected by the Public Servants Regime Bill, which is currently before Congress. In this regard, citing the Plan of Government 2002 – 2006, the “Exposition of Motives” at the beginning of the Bill notes as follows:


The United States notes as follows with respect to the two paragraphs that follows this NOTE:

“References to pending legislation should be in footnotes.” In this regard, the United States proposes deleting the text which appears below this NOTE in strikethrough.


“Other Reports have already commented on this and included it in the structure of the Report’s contents. We will accept the Committee’s decision.”

“One issue that the present Administration has to address to strengthen democracy and good governance and thereby combat corruption is to ‘improve public administration and the conduct of public servants, within a framework of professionalization of the civil service and ethics so that public resources are used more efficiently.’ The goals are to establish a system that ensures transparency in the performance of public servants, a code of conduct for public servants and, in the area of modernization of the State, reforms in the public administration to make it more dynamic, efficient and transparent. The following are among the specific objectives: ‘To support the reform of the civil service, in all its modalities, and modernization of the systems to manage and control human resources and improve the command for planning, monitoring and evaluating the public sector’” Here, measures are planned in connection with the Civil Service Law and advancement of a general legal framework that ensures equal rights to all public servants. The objective is to enact a new law, reorganize the General Civil Service Department, and make public servants more efficient…” (Office of the President of the Republic, 2002-2006 Government Plan, pp. 65-68; 72-74).”

“In 2003, important sectors of society and representatives of government were convened for the Great National Dialogue and signed agreements in which they called upon the present and future administrations to use those agreements as a guide for working on a Country Project. Some of those agreements concern the efficiency of the State, and call for the ‘creation of a civil service for public officials and employees that guarantees their professionalism, efficiency and their awareness that they are servants of the peoples; and that their performance be evaluated by an outside corporate auditor… Enactment of a Law on the Accountability of the Public Servant and/or regulating article 327 and articles 321 – 326 of the Constitution of the Republic concerning the accountability of the State and its servants, so as to be able to hold them criminally and administratively liable… Enactment of a Civil Servants’ Code of Ethics … Building a consensus on a new Civil Service Act, among various related sectors; and guaranteeing the wage and salary equity of public servants…” (the Great National Dialogue, Reforms, Policies and Efficiency of the State. Efficiency of the State and Public Servants).”

16

In light of the above information and considerations, the Committee will formulate the appropriate recommendation. (See Recommendation 1.1.7 in Section 1 of Chapter III of this report)


The United States proposes replacing the paragraph that appears below in strikethrough with the paragraph that appears in bold and underlined.

With respect to other results in this field, considering that the Committee does not have any other information processed in such a way as to allow for a comprehensive evaluation of the results in this field, it will formulate the appropriate recommendations in this regard. (See general recommendations in Section 4 of Chapter III of this report.)

The Committee does not have sufficient information processed in such a way as to allow for a comprehensive evaluation of the results in this field. The Committee will formulate recommendations in this regard. (See general recommendations in Section 4 of Chapter III 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.

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

- Constitutional provisions applicable to all branches of government, such as Article 360, which provides that contracts with the State for the construction of public works, the acquisition of goods and services, purchasing, or the renting of goods, must be executed following bidding, competition or tenders, with the exception of those contracts that respond to emergency needs or those which, due to their nature, can only be entered into with a particular individual.

Legal provisions of varying nature, applicable to all branches of government, among which the following should be highlighted:

- The Law of State Contracting (Decree Number 74 of 2001), and its Regulation (Executive Agreement Number 055-2002), which apply to contracts for public works, the provision of goods and services, and consulting services entered into by the Centralized and Decentralized Public Administration organs in the Executive, as well as in the Legislative and Judicial branches. (Article 1). In addition, Article 8 sets out the exceptions to its applicability.15 Among the provisions of both the Law and its Regulation, the following should be noted:


17

Honduras suggests replacing the word “methods” with the word “bidding” in the following paragraph, and also suggests adding the references to the relevant articles in brackets at the end of the paragraph.

• Article 38 of the Law, which provides that public procurement shall be carried out through: (1) Public Tenders, (Articles 41 to 58),; (2) Private Tenders, (Articles 59 and 60); (3) Public Competition, (Articles 61 and 62); (4) Private Competition (Articles 61 and 62); and Direct Contracting (Article 63). In addition, the Law also provides that procurements that are in excess of the amount established in the General Provisions of the General Budget of State Income and Expenditures, shall be carried out via public bidding methods (Articles 38, 59 and 61 Law of State Contracting).16

• Article 30, 32 and 33 of the Law, which provide, respectively: for the creation of the Public Procurement Policy Office (ONCAE) as a technical and consultative body, responsible for issuing rules and instructions for the development or improvement of the operational aspects of the procurement systems, the provision of advisory services, and the coordination of those activities that guide and systematize the public procurement process; that the preparation, award, and execution of procurements is the responsibility of the entity carrying out the procurement;17 and for the creation of a Evaluation Committee in each entity for the review and analysis of offers. In addition, Articles 132 to 141 provides for sanctions to both public servants and contractors for violations of the procurement laws and regulations.

External control of the national procurement system is exercised by the Superior Court of Accounts, pursuant to its Organic Law (Decree Number 2-2002), which charges the Court with, inter-alia, establishing opportunities and mechanisms for civil society participation of civil society in order to promote and strengthen transparency (Article 70); checking, of its own accord or at the request of ONCAE, that the selection and contracting procedures are carried out pursuant to law; (Article 54(4)); exercising concurrent control over the execution and supervision of public works, and the provision of goods, services and consulting services (Article 54(5)); and investigating the complaints submitted with respect to irregularities in the execution of contracts (Article 70).

The Organic Law of the Superior Court of Accounts also contains provisions related to internal control, such as Article 45(9), which charges the Superior Court of Accounts with, inter-alia, supervising and evaluating the efficiency of the internal control and issuing provisions of a general nature.


Honduras suggests replacing the words “publicly accessible” with the words “provided to the public” in the following paragraph.

• Article 34 of the Law of State Contracting provides that ONCAE shall maintain a Registry of Suppliers and Contractors, and allows the entities of the decentralized administration to have their own registries where necessary; and Article 35 provides that contracts current and past contracts shall also be included in the Registry. Decree Number 010 0f 2005 creates The Honduran System of Information on State Contracting and Procurement,

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“HONDUCOMPRAS”, which is provided to the public publicly accessible at www.honducompras.gob.hn. Some of the information that may be accessed via HONDUCOMPRAS includes the Registry of Suppliers and Contractors, opportunities for contracting with State entities, the terms of reference for each opportunity, as well as the date on which bids will be opened. In addition, the website allows a search of current and executed contracts; contractors that are registered or who have in the past been registered with the State; or who are or have contracted with the State in the past, including a reference as to whether a particular contractor has been sanctioned. Information on the registration procedure and a registration form can also be accessed via the website.

• Article 7(j) of the Regulation of the Law of State Contracting, which defines public work contracts;18 Article 43 of the Law and Article 87 of its Regulation, which require pre-qualification for public works that are to be awarded based on public bidding; Article 82 of the Regulation, which provides a list of prerequisites for the award of public works contracts; and Articles 87 through 97 of the Regulation, which contain detailed provisions on the contracting and award process for public works contracts.

• Provisions which guide the application of the selection process, such as Article 5 of the noted Law, which sets forth the principle of efficiency; Article 6, establishing the principles of publicity and transparency; and Article 7, setting forth the principle of equity and open competition.

• Provisions related to mechanisms for appealing procurement decisions, such as Article 3, which provides that the decisions taken with respect to the types of procurement covered by the Law, fall within the ambit of Administrative Law, and as such, are subject to review pursuant to the Law on Contentious Administrative Jurisdiction.19

- The Agreement Between the Government of the Republic of Honduras and the United Nations Development Program (PNUD), Decree Number 33 of 1995, which, as noted by the country under review in its response, allows State institutions to sign a document or agreement with the UNDP so that national or international bidding processes or private bids can be conducted within the framework of the UNDP.20

- As noted by Honduras in its response, the “…‘fiduciary fence’ applied to purchases financed by international cooperation agencies. Standards, procedures and specific procurement systems are applied by each cooperation agency for such procedures.”21 In this regard, Article 1 of the Law on State Contracting provides that “If an international treaty or agreement to which the State is party or an agreement concluded with an external financing agency provides otherwise, then the clauses of those documents shall take precedence over the provisions of this law; in all other respects, if no such contradiction exists, contracting shall be governed by the provisions of this Law.”

1.2.2. Adequacy of the legal framework and/or other measures.

With respect to the legal and regulatory provisions addressing the principal systems for State procurement of goods and services examined by the Committee, based on the information available to it, they constitute, as a whole, a body of measures relevant to promoting the purposes of the Convention.

19

http://www.honducompras.gob.hn/

Nonetheless, the Committee considers it appropriate to formulate certain observations regarding the advisability for the Republic of Honduras to consider complementing and developing the legal framework and the existing measures for the procurement of goods and services. In particular, the Committee notes as follows:



“We think it is important to point out that direct contracting is highly restricted, to the cases indicated in Articles 9 and 63 of the State Contracting Law (LCE). Article 9 establishes, as a prior requirement, that a state of emergency be declared, either by a decree of the President of the Republic or by the vote of two-thirds of the corresponding municipal corporation, for contracting without observing the bidding requirements, in cases of natural disasters, epidemics, or other situations amounting to public emergencies. In such cases, it is difficult to abide by rigid procedures.

The other cases covered by Article 63, paragraphs 2 to 7, of the Law also require the authorization of the President of the Republic, if the central government is involved, or of the corresponding directorate if the decentralized administration is involved, explaining in detail the reasons for the direct contracting; in any event, the best price must be negotiated.

The HONDUCOMPRAS webpage clearly defines the procedural diagram for direct contracting, including the following: in the applicable cases (LCE Articles 9 and 63, and LCE Regulations Articles 169 and 170), the body in question must invariably specify the purpose of the contract, the emergency, need, or public goal, and a budgetary estimate (LCE Article 23, and RLCE Article 37) and accounting code for goods (RLCE Article 80).

In direct contracting processes, the technical specifications and conditions for the contract must be drawn up; possible suppliers or contractors, as applicable, must be identified; and, in accordance with LCE Article 142 and RLCE Article 105, clarifications and clarifying responses must be provided. Proceed to negotiate the most favorable prices and conditions (RLCE Article 171), draw up the Report, formalize the contract, and record it with the Finance Secretariat.”

- With respect to the differing methods of procurement provided for in the Law on State Contracting, the Committee finds an absence of provisions guaranteeing transparency in those cases where direct contracting is used, such as clear provisions establishing the procedure to be followed. The Committee will formulate a recommendation in this regard. (See Recommendation 1.2.1.a in Section 1 of Chapter III of this report)



“Article 63 of the LCE also states that the decree issued by the President of the Republic must express the reasons or situations that require such operations to be kept secret, and so we support neither the comment nor the need for a Recommendation.”

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- The Committee is similarly concerned that Article 63(4) of the Law on State Contracting, which allows for direct contracting “when the circumstances require that the operations of the Government be kept secret”, may be too broad, in that it does not define what type of situations might give rise to this need for secrecy. The Committee will formulate a recommendation in this regard. (See recommendation 1.2.1.b in Section 1 of Chapter III of this report)



“We recommend reconsideration of the inclusion of this point in the report, as currently formulated here. It is not clear how why this observation is necessary here, if a corresponding recommendation is given in this report.”


“As regards the notification of the results of bid assessments, in the comments we have offered and that are also related to Recommendation 1.2.1 c of Section I of Chapter III, we note that bid assessments are confidential and not for public use. (Article 6 of the Law, and Article 12 of its Regulations.)”

Honduras notes the following with respect to the paragraph under discussion:

“The LCE enshrines the principles of disclosure and transparency, as does Article 10 of RLCE; consequently the information relating to administrative contracting activities, access to which is guaranteed to interested parties under the aforesaid articles of the Law, includes details on the start of contractor selection procedures, the need for prequalification or registration in the Register of Suppliers and Contractors, access to the list of conditions whereunder the procedure is to be conducted, the opportunity to be informed of amounts and other relevant aspects of the offers when the bid envelopes are opened, notification of the resolutions issued as a part of those procedures, together with any other information of a similar related nature. This is to be understood without prejudice to the special characteristics of the direct contracting procedure. In observance of the ban set out in Article 6, second paragraph, of the Law, regarding information which by its nature is considered reserved, the contracting bodies are required to safeguard all the bids submitted and not to reveal them until the date and time specified for the opening of the bid envelopes; they must also refrain from providing, to bidders or any other person without an official interest, any verbal or written information about the analysis and evaluation of the bids and about the award recommendation drawn up by the Evaluation Commission described in Article 33 of the Law until notice of the awarding of the contract is given. In light of this, we do not agree with the need for a Recommendation in this case.”

- The Committee also notes an absence of provisions requiring government entities to notify interested parties on the outcome of the evaluation of bids prior to the final selection decision, which would allow for comments, observations, or challenges prior to award. (See Recommendation 1.2.1.c in Section 1 of Chapter III of this report)


21


“We remain unclear about this comment and the possible Recommendation. The LCE clearly states, in Article 59, that in private requests for tenders, invitations to bid will be issued to at least three potential bidders who appear in the register of suppliers and contractors.”

The Secretariat notes that although Article 59 of the LCE requires that the three potential suppliers selected to participate in a private bid be selected from bidders who appear in the register, there are no guidelines for how those three suppliers are selected, presumably from among many other qualified bidders that also appear in the registry.

- In the case of private tenders, the Committee notes an absence of provisions governing the selection of suppliers to be invited to participate in a particular tender. This issue is also noted in the WB/IDB-CPAR.22 In light of this situation, the Committee will formulate a recommendation. (See Recommendation 1.2.1.d in Section 1 of Chapter III of this report)



“The quoted article empowers the administration to resolve contracts on grounds of public interest and to amend them by reducing or increasing the payment terms specified. If there is an increase, in accordance with LCE Article 123, it must be duly justified and shall be admissible when circumstances or new needs unforeseen at the time of contracting arise and that is the only way to satisfy the public interest sought. The total value of the modifications may not exceed 25% of the initial contract amount or address a purpose or goal other than the one originally contracted for; increases in excess of 25% require the approval of Congress. Consequently, we do not agree with the comment from WB/IDB-CPAR that holds that “Agreements to modify the price or the scope of contracts are often reached in private, without much consideration given to the original provisions of the contract… as such, amendments are the rule and not the exception as a result of this informal bargaining process”; although it is true that there is a high rate of modifications in the country, the alleged discretion does not exist..”

- The Committee considers that Article 121 of the Law, which allows modifications based on the public interest, may allow too much discretion with respect to contract modifications. In this regard, the WB/IDB-CPAR notes that “Agreements to modify the price of the scope of contracts are often reached in private, without much consideration given to the original provisions of the contract…as such, amendments are the rule and not the exception as a result of this informal bargaining process.”23 In light of these considerations, the Committee will formulate a recommendation. (See Recommendation 1.2.1.e in Section 1 of Chapter III of this report)



22

“We recommend reconsideration of the inclusion of these points in the report, as currently formulated here. It is not clear how why these observations are necessary here, if a corresponding recommendation is given later.”


“We agree with the comment. But in addition, the country also has internal audits and external controls and external supervisors for its work projects.”


“We are not entirely in agreement with this comment on account of the following: RLCE Article 139 states that “Auctions for public works or supplies will be awarded within the period of validity of the bids, by means of a grounded resolution issued by the competent body” – in other words, the award does have to be justified. In addition, Article 142 of the same Regulations provides that: “Notification of the resolution awarding the contract issued by the body responsible for the bidding process shall be given to the bidders, and a record thereof shall be left in the dossier. It could be that such notifications are given prior to the adjudication, and so we will accept whatever the Committee orders. There is no legal restriction disallowing disclosure of those documents to any interested party or to the general public.”

- The Committee also notes an absence of provisions requiring publication of the justification for contract award. Similarly, the Committee notes an absence of provisions allowing any person to have access to the contract award or selection files. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2.1.f in Section 1 of Chapter III of this report)



“We recommend reconsideration of the inclusion of these points in the report, as currently formulated here. It is not clear how why these observations are necessary here, if a corresponding recommendation is given later.”


“We agree with the comment. But in addition, the country also has internal audits and external controls and external supervisors for its work projects.”


“We think it is unlikely that a State Contracting Law would regulate the existence of qualified citizen overseers or supervisors. LCE Article 30 establishes a Consultative Committee comprising representatives of the State and qualified members of civil society such as: the Honduran Private Enterprise Council, the Honduran Construction Chamber, the College of Civil Engineers of Honduras, and the Honduran Chamber of Consulting Companies. If we link that article with Article

23

54(4) of the Organic Law of the Superior Court of Accounts, which stipulates that the Court has the power to “to verify, on an ex officio basis or at the request of any of the members of the Consultative Committee of the Contracts and Acquisitions Office, described in Article 30 of the Law on State Contracting, that the selection and contracting procedures carried out comply with the principles of legality, efficiency, disclosure, transparency, equality, and free competition enshrined in Articles 5, 6, and 7 of that Law and, additionally, with the provisions of Articles 69 and 70 of said Law, which indicate that the social control mechanism, for the purposes of the Law, is the process of citizen participation, intended to assist the Court with the functions assigned to it; and to assist the legal, correct, ethical, honest, efficient, and effective administration of the State’s resources and property; in addition, for due compliance with obligations and responsibilities of the passive subjects and private citizens in their patrimonial relations with the State, with the effect of allowing the citizenry to present complaints alleging irregularities in the execution of contracts, we must conclude that there are legal mechanisms in place whereby citizens can participate in the supervision of public works processes. In consideration whereof, we do not agree with either the comment or the Recommendation.”

- In addition, the Committee has no information regarding provisions that allow for the establishment of citizen overseers or watchdogs qualified to monitor the execution of contracts where the nature, importance or magnitude so warrants. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2.1.g in Section 1 of Chapter III of this report)


Honduras notes as follows with respect to the following paragraph:

“All public sector offices, which manage the country’s important contracting sector, have internal auditing services whose functions include that of overseeing and monitoring the use of funds derived from the public works, supply, and consultancy contracts entered into. In addition, all contracts – and, most particularly, those of a certain size – are required by law to have independent supervision selected by means of public competitive procedure. Finally, the powers afforded to the Court by Article 54 of its Organic Law should not be overlooked, paragraph 5 of which empowers it to: “Oversee, on a concurrent basis, when it deems necessary, the execution and supervision of public works, supplies of goods and services, and consultancies.”

- With respect to control mechanisms, the Committee notes an absence of provisions providing for the selection of an individual or entity responsible for audit, control and oversight of contracts of a certain size or complexity. (See Recommendation 1.2.2 in Section 1 of Chapter III of this report)

- With respect to electronic means of procurement, and notwithstanding the existence and operation of HONDUCOMPRAS, the Committee notes an absence of an electronic procurement system allowing for the acquisition of goods and services by electronic means. (See Recommendation 1.2.3 in Section 1 of Chapter III of this report)

- In addition, the Committee considers that a certain amount of confusion may be created by the fact that only certain entities use HONDUCOMPRAS for all of their procurement needs. Thus, while in theory, the vast majority of procurements employing the national system should be publicized on HONDUCOMPRPAS, in practice this is not the case. In addition, it appears that some entities use

24

both HONDUCOMPRAS as well as their own internet portal for publicizing procurements. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2.4 in Section 1 of Chapter III of this report)



" We offer the same comment here as below – while this is a good practice, it isn’t really a corruption/transparency issue.”


“We agree with the comment in that it is a sound practice, but since it “is not a matter related to corruption or transparency” we request the deletion of this paragraph.”

Honduras proposes deleting the paragraph that follows this NOTE, pointing out that:

“…in our opinion they are totally unrelated to what we are evaluating.”

- With respect to public works contracts, the Committee notes an absence of provisions requiring, prior to the start of such contracts, impact studies to determine such aspects as neighboring properties that may gain or lose value, or cost-benefit ratios. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2.5.a in Section 1 of Chapter III of this report)


The United States makes the following comment with respect to the following paragraph:

“This issue is not foreseen in the Convention nor in the questionnaire – we recommend deleting this and recommendation 1.2.5b.”


“We agree with the comment and request the deletion of that paragraph.”

Honduras proposes deleting the paragraph that follows this NOTE, pointing out that:

“…a nuestro juicio son totalmente fuera de lo que se esta evaluando.”

- The Committee also notes a lack of provisions regarding the manner in which the State will collect its share of the increased value of neighboring properties or pay its share of any decrease in their value and of any environmental damage, nor to determine whether the anticipated cost-benefit ratio has been achieved as a result of contract execution. In this regard, the Committee will formulate the corresponding recommendation. (See Recommendation 1.2.5.b in Section 1 of Chapter III of this report)


25

Honduras proposes deleting the paragraph which appears below in strikethrough, noting that it contains the same information as the paragraph discussed above in NOTE FROM THE SECRETARIAT # 32.

With respect to this point, the Secretariat notes that while the paragraph discussed in NOTE 32 addresses the establishment of a specific citizen overseers or watchdogs charged with monitoring the execution of certain types of projects, presumably those of a certain size or scope, the following paragraph contemplates provisions which simply allow citizens in general, to monitor public works contracts.

- The Committee also notes an absence of provisions allowing for citizen oversight of public works. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2.5.c in Section 1 of Chapter III of this report)

- With respect to mechanisms for challenges or appeals to the bid process, and notwithstanding the opportunity to challenge aspects of particular procurements via the Administrative Procedure and the Law on Contentious Administrative Jurisdiction, the Committee considers that there is a need for a specific procedure allowing for complaints at the administrative level, as well as a written procedure as to how government entities should receive and respond to challenges or complaints. In this area, the WB/IDB-CPAR notes “…the lack of a comprehensive, effective and transparent mechanism for bidders to challenge their complaints and protests...complaints do not traditionally succeed, because the executing units usually do not follow-up on claims and delay the final response to the process.”24

In light of these considerations, the Committee will formulate a recommendation. (See Recommendation 1.2.6.a in Section 1 of Chapter II of this report)



" This should be moved to recommendations.”

In addition, the United States suggests the deletion of the text that appears below in strikethrough and the inclusion of the text that appears in bold and underlined.


“Same remark as given with respect to comment A10.”

Honduras notes the following with respect to the paragraph under discussion:

“The Superior Court of Accounts, through its Directorate of Citizen Participation, has already heard and resolved reports of complaints and irregularities in the procurement system for goods and services, and so we do not believe that any Recommendation on this point is necessary.”

- The Committee further notes that the above-described problem might be ameliorated in part if the Superior Court of Accounts were the lack of a mechanism to investigate complaints alleging irregularities in the application of the procurement system, as provided for by Article 70 of its

26

Organic Law. Bearing these considerations in mind, tThe Committee will formulate a the appropriate recommendation. (See Recommendation 1.2.6.b in Section 1 of Chapter III of this report)

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

With respect to results in this field, the response of the Republic of Honduras notes as follows: “Taking into consideration that HonduCompras was created only recently (October 2005) and that it coincides with a recent changeover in Government authorities, and that at the same time this dissemination system is in the process of being developed and implemented, we do not have very much statistical data at present. Once we have achieved the objectives we will be able to obtain all the statistical information required which will enable ONCAE, through HonduCompras, to identify and orient public procurement policies.”25

The information submitted by Honduras indicates, inter-alia, that with respect to procurements carried out through HONDUCOMPRAS since October 2005, 102 procurements (55%) were done through public tenders, 16 (9%) were done through private tenders, 43 (23%) were done through public competitions, 1 (0.5%) was done through private competition, 11 (6%) were done via prequalification, i.e., public works, and 13 (6.5%) were done through “quotes”.With respect to the foregoing results, considering that the Committee does not have any other information processed in such a way as to allow for a comprehensive evaluation of the results in this field, it will formulate recommendations in this regard. (See general recommendation 4.2 in Section 4 of Chapter III of this report.)

Notwithstanding the foregoing, the Committee is concerned, as noted by Honduras in its response, of the existence of a “fiduciary fence” applied to purchases financed by international cooperation agencies, which, according to the response submitted by Honduras, allowed for more efficient and transparent procurement for major contracts during the 2002-2006 administration, but which admittedly “may have held back the development of a strong national system.”26 According to the 2005 WB/IDB-CPAR Report, this fiduciary fence applies to “a significant share of public investment in Honduras (approximately 75%)…The procurement local system under the [Law on State Contracting] is presently applied to a non significant share of public procurement and it is difficult to monitor and evaluate its real impact on budget implementation.”27 The WB/IDB-CPAR further notes that “With a few exceptions…the national system is not used for either major capital investments or a large portion of current expenditures.”28


Honduras notes as follows with respect to certain recommendations in this section of the report:

“The fiduciary fence was not established by the country but rather by the sources of external resources (including the IDB, the World Bank, the Central American Bank for Economic Integration (BCIE), and the European Union (EU)), which require their own regulations to be applied in procurement processes, to the detriment of domestic regulations; the elimination of the fiduciary fence is in the hands of those international agencies and not in those of the country.”

In particular, with respect to the paragraph that follows this NOTE, Honduras states that:

“This lack of implementation is essentially due to the factors identified above.”

27

Based on the foregoing, the Committee is concerned that in spite of the relatively recent enactment of a modern Law on State Contracting and its Regulation, these legal texts have only been partially implemented. In light of this situation, the Committee considers it necessary to express the following considerations:


The United States suggests moving the penultimate sentence of the paragraph that follows this NOTE, which appears in bold underlined italics, to the section on recommendations:

In addition, the United States suggests deleting the text which appears below in strikethrough and inserting the text which appears underlined.


“We note our concern in that the content of these comments does not necessarily reflect the reality of the country, as we stated in our comments on the draft Report drawn up by the Secretariat.”

Honduras notes as follows with respect to the paragraph under discussion:

“Using resources from those same international agencies (particularly the IDB), Honduras has invested billions of dollars in strengthening and improving its domestic procurement system and so the recommendation whereby “international donors and lenders will be willing to allow their funds to be disbursed and managed under that system” should be directed at the international lenders and cooperation agencies, since the country itself can do very little in that regard.”

- The Committee takes note of the view expressed by the WB/IDB-CPAR, that full implementation and application enforcement of the Law on State Contracting is a basic requirement for the development of an adequate and transparent national procurement system. Accordingly, and cognizant of the existence of the above-described fiduciary fence, the Committee nonetheless feels that the Republic of Honduras should take the steps necessary to fully implement the provisions of the existing Law and its Regulation, with a view towards eliminating the so-called fiduciary fence, so that improving the national procurement system so it can be applied to the majority, if not all public procurement within Honduras. In so doing, Honduras should take the steps necessary to strengthen and improve the national procurement system, so that international donors and lenders will be willing to allow their funds to be disbursed and managed under that system. In this regard, the Committee will formulate the appropriate recommendations, keeping in mind the following conclusions of the WB/IDB-CPAR: (See Recommendation 1.2.7 in Section 1 of Chapter III of this report) In so doing, the Republic of Honduras should take the following into account:



“Indeed, budgetary limitations at the Superior Court of Accounts affect its optimal oversight functioning in terms of its coverage but not of its being “fully operational.”

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• ONCAE needs to be put into full operation and must be endowed with sufficient resources to carry out its various prescribed functions. In this regard, the WB/IDB-CPAR notes that “to date, it has remained largely unstaffed….”29 and that “The lack of sufficient budgetary resources and qualified staff have prevented ONCAE (and to a lesser extent [the Superior Court of Accounts], from becoming fully operational, and hence from undertaking critical responsibilities for procurement policy formulation and oversight much needed to advance the effective implementation of the LCE and the management of the public procurement system.”30

In addition, the CPAR notes that “Critical aspects of the public procurement system reform depend on the ONCAE’s effectiveness…A well functioning ONCAE is sine qua none for (i) establishing procurement units within the ministries and consolidation of [the Project Implementation Units]; adopting guidelines and oversight to ensure consistent use of planning resources, bidding documents, operational manuals, and other implementing tools; and (iii) training of procurement staff responsible for the public procurement.”31 In light of the foregoing considerations, the Committee will formulate a recommendation. (See Recommendation 1.2.7.a in Section 1 of Chapter III of this report)



“We fully agree that the development of a sound national procurement system requires fully operational and functional external and internal control systems; the Court, on account of budgetary considerations, has coverage problems, but where it carries out control activities it does so fully.”

• A second aspect that is critical to the development of a sound national procurement system is the need for fully operational and functional external and internal control systems. In this regard, the WB/IDB-CPAR’s notes that budgetary and personnel constraints have played a role in preventing the Superior Court of Accounts, the external control of the national procurement system, from becoming fully operational. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2.7.b in Section 1 of Chapter III of this report)



“It is technically incorrect to speak of an “internal control unit,” since this is a system that operates throughout the organization and functions under the responsibility of the institution’s top authority; as a part of that system is the internal auditing unit which, in Honduras’s case, exists and operates within the three branches of government and in the different agencies of the public sector.

To ensure coordination and complementarity between internal and external oversight and full enforcement of the international control provisions, the Tribunal is currently working on implementing the National System for the Control of Public Resources.”

29

The Secretariat has corrected the following paragraphs and the corresponding recommendation, so that both now refer to an internal “audit” unit rather than to an internal “control” unit.

• With respect to internal audits control, the available information does not indicate whether each entity within the respective entities and organs in all three branches of government has put into operation an internal audit control unit. In this regard, the Committee notes that the Superior Court of Accounts has issued Internal Audit General Standards in this regard, pursuant to Article 45 of its Organic Law. Moreover, Article II of these General Standards requires that each public sector entity have an internal audit control unit in place, unless a particular law provides otherwise.

With respect to this issue, the WB/IDB-CPAR notes that “There is a significant disconnect between the requirements set forth in these rules and practices of applications developed by procuring entities. There are no internal procedural or operational manuals to explain how the principles and obligations contained in the legislation and regulations are to be applied within the organizational context of [Government of Honduras]. Similarly, there is no guidance with respect to organizational and individual roles, relationships, authorities and accountabilities. Although some executing agencies have had such manuals in the past, they have not been updated. Many of the current procedures have developed more as a result of customary practices and uses than from consistent, coherent instructions in a manual.”32



“It is inappropriate to suggest that “each organ should have an internal control unit,” since what the law requires is the existence of an internal auditing unit, which does exist in the country and must enforce not only the General Internal Auditing Standards issued by the Superior Court of Accounts, but also the General Internal Control Standards issued by that same Court..”

Accordingly, the Committee considers that it is important for each entity to have an internal audit control unit in place as required by law, and for each such entity to apply the Internal Audit General Standards issued by the Superior Court of Accounts. The Committee will formulate a recommendation in this regard. (See Recommendations 1.2.7.c and 1.2.7.d in Section 1 of Chapter III of this report)


The United States suggests moving the penultimate sentence of the following paragraph, which appears in bold underlined italics, to the recommendations section.

In addition, the United States suggests deleting the text which appears below in strikethrough and inserting the text which appears underlined.


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“It is inappropriate to say that “the Committee considers that until such time as donor organizations are willing to allow application of the national procurement system to contracts executed with their funds, there is still a role to be played by the Superior Court of Accounts, with respect to its control and oversight functions,” since it must perform that function independently of the decisions reached by the external sources.

The Superior Court of Accounts is subject to no restrictions in its oversight of projects and programs funded by external sources of resources, and so it is not true that there is a displacement of its supervisory (read: oversight) role, and so no recommendation in that regard is appropriate.”

• Bearing the foregoing in mind, t The Committee considers that until such time as donor organizations are willing to allow application of the national procurement system to contracts executed with their funds, there is still a role to be played by the Superior Court of Accounts, with respect to its control and oversight functions. In particular, the Committee considers that given that Article 54 (5) of the Organic Law of the Superior Court of Accounts expressly provides for the Court to carry out concurrent control of the execution and supervision of contracts when necessary/appropriate, the fact that donor entities require use of their own particular procurement systems should not be allowed to result in displacement the Court’s supervisory role. Thus, the Committee considers that it would be useful for the Superior Court of Accounts to exercise this concurrent control, even in the case of externally funded projects, and notwithstanding the application enforcement of donor procurement rules. The Committee will formulate a recommendation in this regard. (See Recommendation 1.2.7.e in Section 1 of Chapter III of this report)


The United States suggests moving the last sentence of the following paragraph, which appears in bold underlined italics, to the recommendations section.



- The Committee is also concerned that the Agreement between the Government of Honduras and the United Nations, cited by Honduras in its response, and which allows State entities to have their procurements operated through the UNDP’s procurement framework, may similarly inhibit proper development of Honduras’ national procurement system. As a result, the Committee considers that once the foregoing control mechanisms have been established, where possible, efforts should be made to utilize the national procurement system. (See Recommendation 1.2.8 in Section 1 of Chapter III of this report)


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The United States suggests deleting the text which appears in strikethrough and inserting the text which appears underlined and in bold in the paragraph that follows this NOTE.


“Indeed, using schemes such as the UNDP in the procurement of goods and services affects the proper development of Honduras’s national procurement system. However, the use of that mechanism has nothing to do with the oversight process, since even the agreements entered into by the UNDP and various agencies of the Government stipulate that the Court can oversee the award process, which was the only element delegated to the UNDP. Currently the Government of Honduras has adopted the political decision to refrain from using that Agreement.”

- Finally, taking into account that the existing legal framework in this area is of relatively recent creation, the Committee believes that it might be convenient for the Republic of Honduras lacks a mechanism for to consider carrying out periodic evaluations, which will allow for measurement of the use and effectiveness of the national procurement system, and based on those results, define and consider the adoption of specific measures which ensure transparency, publicity, equity and efficiency of the system. (See Recommendation 1.2.9 of section 1.2 of Chapter III of this report)

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 Republic of Honduras has a set of provisions and measures related to the above-mentioned systems, among which the following should be noted:

- The Code of Criminal Procedure, Article 5 of which establishes that the State will provide the required assistance and protection for victims, witnesses and others who intervene in criminal proceedings; Article 237, which provides that when the responsible entity considers that a grave danger exists for a witness or his family as a result of testimony that is to be given, it should adopt the protection measures deemed necessary, including keeping their names confidential, allowing them to testify in such a way that they cannot be visually identified, and listing their address as the address of the entity responsible for the matter; and Article 270, which provides that those who report crimes have the right to have their identity kept secret.

- The Organic Law of the Superior Court of Accounts, Article 72 of which states that public servants and others (as provided for by the Article) who report infractions or illegality in public service, are entitled to protection pursuant to law.

- The Regulation of the Organic Law of the Superior Court of Accounts, Article 110 of which allows those who report to have their name and identity kept secret.

- With respect to existing mechanisms in this area, the document presented by FPOSC notes that the Inter-Institutional Commission of Criminal Justice has implemented a temporary strategy, which “must be carried out by all those in criminal justice. The measures to be taken have been classified according to their place in the various phases of the criminal justice process, at every level: the

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police, the public prosecutor’s office, and the courts. The strategy stipulates that the Secretariat of Security shall be charged with creating special units for working with witnesses, from the time the forces of law and order appear at the crime scene; the public prosecutor’s office is charged with creating a special file in which to record the general information on all victims, witnesses, experts and others involved in the case and who are under protection; the Judiciary shall appoint administrators of sentencing courts and combined courts, who are to be trained in witness protection. Lastly, the strategy provides that in the case of persons to whom security measures are being provided to protect their physical safety, the police, the public prosecutor’s office and the judiciary shall plan the access routes that such persons will use, how long they will stay and the particulars of their appearance.” 33

2.2. Adequacy of the legal framework and/or other measures

With respect to the provisions addressing systems for the protection of public servants and private citizens who in good faith report acts of corruption that have been examined, the Committee considers that based on the information available to it, they constitute, as a whole, a set of measures relevant to promoting the purposes of the Convention.

In addition, the Committee recognizes the positive steps that have been undertaken, as demonstrated by the temporary measures that have already been implemented, as detailed by the civil society organization ACI PARTICIPA.

Nonetheless, the Committee notes an absence of provisions and mechanisms specifically designed to protect whistleblowers. In this regard, the response of Honduras notes that “The same mechanisms used to report acts of corruption apply for reporting acts or actions involving threats of retaliation for reporting acts of corruption. However, no specific procedure has been determined for this in the case of threats or retaliation and some isolated or temporary measures that could be applied by the authorities might be considered in such cases. Hence, it can be concluded that generally speaking there is a lack of legal rules and regulations and mechanisms to guarantee protection, other than reserving the person’s identity which might avoid retaliation, and come legal provisions on how to guarantee protection.” 34



" Reference to proposed legislation should be in footnotes.”

Honduras notes as follows with respect to the foregoing paragraph:

“We believe that certain types of progress have already been considered in the structure of Reports dealing with other analyzed countries.”

In this regard, the Committee recognizes, as noted by Honduras in its response, the existence of a bill now before Congress, for the Protection of Witnesses, Experts and others involved in Criminal Proceedings. With respect to the bill, Honduras’ response notes that “The bill was initially intended to apply to organized crime, but the Prosecutor General has the power to include other offenses in

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special cases which is why a crime involving corruption might require protection.”35 The Committee notes, that because there are corruption offenses that are not necessarily criminal in nature, individuals reporting such crimes would presumably not be protected by the provisions of the existing bill, which specifically refers to criminal procedures. Moreover, the Committee considers that the implementation of specific provisions for protecting good faith reporters of acts of corruption would be more appropriate than provisions that would include protection only in “special cases” included by the Prosecutor General.

The foregoing consideration is reinforced by the comments provided by ACI PARTICIPA, which notes that “As of now, Honduras does not have a Special Witness Protection Law. This vacuum in the law is compensated by applying the Criminal Procedure Code… In years past, the measures used have been purely a matter of common sense rather than an established witness protection system. An example of such a common sense measure would be to change the domicile of the witness. The only problem is if the jurisdictional body fails to act quickly, the witness simply takes matters into his or her own hands and leaves the country in order to avoid reprisals.”36


The United States suggests the deletion of the text which appears in strikethrough in the following paragraphs:

Thus, the bill as contemplated may be insufficient to remedy the existing legal vacuum in this area. Accordingly, the Committee considers that it would be convenient for the Republic of Honduras to consider developing and implementing the necessary systems, through the adoption of legal provisions specifically for the protection of those who report acts of corruption, in accordance with the fundamental principles of the domestic legal system. The Committee will formulate a recommendation in this regard. (See Recommendation 2.1 in Section 2 of Chapter III of this report)

Additionally, and notwithstanding the existing provisions establishing the right to protection, the Committee notes an absence of provisions establishing clear procedures for requesting such protection. Accordingly, the Committee considers that the provisions that are enacted should contemplate such aspects as, among others, the following:

• Mechanisms for reporting acts of corruption, including the possibility of anonymous reporting, the protection of the reporters’ identity, and the use of simplified formats or electronic means which facilitate reporting, in order to ensure the safety of public servants and private citizens. The Committee will formulate a recommendation in this regard. (See Recommendation 2.1.a in Section 2 of Chapter III of this report)

• Mechanisms for reporting threats or reprisals that both public servants and private citizens may face as a result of reporting acts of corruption, which ensure, among other aspects, the public servant’s employment security, particularly when the report alleges actions that may involve the individuals’ colleagues or hierarchical superiors. The Committee will formulate a recommendation in this regard. (See Recommendation 2.1.b in Section 2 of Chapter III of this report)


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“We believe that the suggestion of “assigning bodyguards” is neither applicable nor based in reality, since the resources for assigning such personal escorts do not exist; a suggestion could probably be made for regular patrols or another form of protection.”

• Mechanisms for the protection of witnesses, which offer the same guarantees both for public servants and private citizens, such as, for example, the provision of bodyguards The Committee will formulate a recommendation in this regard. (See Recommendation 2.1.c in Section 2 of Chapter III of this report)

• Mechanisms that facilitate international cooperation with respect to the above areas, when appropriate. (See Recommendation 2.1.d in Chapter III of this report)

In addition to the foregoing, tThe Committee considers finds that the Republic of Honduras lacks should also ensure that the necessary bodies to are either created or assigned the task of receiveing and responding to requests for protection, as well as ensureing the provision of the necessary measures of protection; and that they have the necessary resources and personnel to carry out their functions. The Committee will formulate a recommendation in this regard. (See Recommendation 2.2 in Section III of this Report)

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

With respect to results in this field, the Republic of Honduras notes that “There are no indicators available to reflect this mechanism’s effectiveness or objectivity. However, the number of complaints filed has increased quite notably, as have the responses to them, the facilities for filing them, the methods for doing so, etc. This, in combination with the administrative sanctions and penalties applied under the criminal legislation in force, reflects a positive view of this method of preventing acts of corruption and is considered an effective means of protecting identity, determining liabilities and applicable sanctions, and facilitating the reporting process.”37

With respect to concrete results, the report further notes as follows:38

- In the last four years the Office of the Special Anti-Corruption Prosecutor brought 104 lawsuits, leading to 13 guilty verdicts, 12 temporary dismissals and 12 definitive dismissals.

- The following movement was registered for the General Inspectorate of Courts and Courts, which comes under the Supreme Court of Justice during 2005:


The United States makes the following comment with respect to the figures that follow this NOTE:

“What do these mean? How do these relate to whistleblower protections? I suggest they be deleted if not placed in an appropriate and compelling context.”


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“As stated in section 2.3, increases or itemizations of reports of acts of corruption, in addition to confidence in the system, we believe that these are the result of effective compliance in protecting the identity of informants. The term “dealt with” means: processed to conclusion or resolution.”

Reports Remitted to the Received Dealt with Pending Admitted Public Prosecutions

Service 707 511 199 152 59



“Complaints of what nature, and in reaction to what? How is this information relevant here? Also, what does “dealt with” constitute here? The context needs to be clarified.”


“As stated in section 2.3, increases or itemizations of reports of acts of corruption, in addition to confidence in the system, we believe that these are the result of effective compliance in protecting the identity of informants. The term “dealt with” means: processed to conclusion or resolution.”

- Between January 2005 and June 30, 2006, the Citizen Participation Directorate, which comes under the Court of Accounts received 160 complaints, of which 72 were dealt with, 50 were transferred to other dependences of the Court, 22 were pending investigation and 16 were rejected.

- According to the Report of the National Anti-Corruption Council (created in 2005), four complaints were received and transferred to the Court of Accounts. The court follows up the cases reported involving corruption or lack of transparency in the written press on a monthly basis. Between January and April 2006, eighty-six cases of corruption were reported by the media.

With respect to above results, considering that the Committee does not have any information processed in such a way as to allow for a comprehensive evaluation of the results in this field, it will formulate recommendations in this regard. (See general recommendations in Section 4 of Chapter III of this report.)

3. ACTS OF CORRUPTION (ARTICLE VI(1) OF THE CONVENTION)

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

The Republic of Honduras 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 highlighted:

36

• With respect to paragraph (a) of Article VI(1):

- Article 361 of the Criminal Code, which states that “Any public official or employee who solicits, receives or accepts, either on his own or through third parties, handouts, gifts, offers, promises or any other undue advantage in exchange for performing any act that violates his or her duties and constitutes a crime shall be punished with imprisonment for a period of five (5) to seven (7) years, plus absolute disqualification from public office for double the period of his or her incarceration, separate and apart from the penalty incurred by reason of the crime committed in exchange for the handout or promise.”39

- Article 362 of the Criminal Code, which states that “Any public official who directly or indirectly solicits, receives or accepts handouts, gifts, offers, promises or any other undue advantage to perform an unjust but not criminal act relative to his or her office shall face imprisonment for a period of two (2) to five (5) years. If the act is never consummated, then the defendant shall receive a sentence of one (1) to three (3) years. In either case, the official shall be disqualified from public office for double the period of his or her incarceration.”

- Article 363 of the Criminal Code, which states: When the handout or gift solicited, received or promised is in exchange for the public official or employee not performing a function that is his or her legal obligation to discharge, the punishment shall be imprisonment for two (2) to five (5) years, plus special disqualification for double the period of his or her incarceration.”

• With respect to paragraph (b) of Article VI(1):

- Article 366 of the Criminal Code, which states in pertinent part: “DOMESTIC BRIBERY. Any natural person who, either directly or indirectly, intentionally gives some public official or person discharging public functions an object having monetary value or some other benefit such as promises or advantages, whether they be for that person or for others, in exchange for that public official performing or not performing one of his or her official functions or obligations, shall face punishment of five (5) to seven (7) years, plus absolute disqualification for double the period of his or her incarceration, over and above any punishment that the crime committed by virtue of that handout or promise carries.”

• With respect to paragraph (c) of Article VI(1):

- Article 370 of the Criminal Code, which provides that “Any public official or employee who steals cash, property or effects that, by virtue of his or her office or position, he or she was entrusted with administering, receiving or holding or who –even if not so entrusted- had a hand in stealing said cash, property or effects, shall be imprisoned for two (2) to five (5) years if the value of the stolen money or property is one thousand Lempiras (L.1,000) or less, and six (6) to twelve (12) years if the value of the stolen property is more than one thousand Lempiras (L. 1,000). He or she shall also face absolute disqualification for double the period of incarceration.”

- Article 372 of the Criminal Code, which provides that “Any public official or employee who uses money, property or effects for a purpose other than one for which they were intended but in so doing

39 According to Article 2 of the Organic Law of the Superior Court of Accounts, a “public servant” (“servidor publico”) is any employee of the State of its entities, including those who have been selected, appointed, hired, or elected to perform activities or functions in the name of the State or at its service, at all hierarchical levels.

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does not harm the assets of the State, shall face a fine of fifty thousand (L. 50,0000) to one hundred thousand Lempiras (L.100,000) and special disqualification for a period of three (3) to five (5) years.”

- Article 374 of the Criminal Code, which provides that “Any public official or employee who, either directly or through another person, or through fraudulent acts, takes a stake, for the sake of personal profit, in any contract or operation to which he or she is party by virtue of his or her position or office, shall face imprisonment for a period of three (3) to six (6) years, and absolute disqualification for double the period of his or her incarceration.”

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

- Article 32 of the Criminal Code, which provides that “Authors shall refer to anyone who takes direct part in the commission of the deed or those who directly force or induce others to commit the deed using means without which the deed would not have been committed.”

“In crimes of omission, the authors are those who fail to do what the law requires, cause the omission or cooperate therein.”

- Article 33 of the Criminal Code, which provides that “Accomplices are those who have aided and abetted the commission of the crime through acts performed prior to or at the same time as the crime.”

“If the particular circumstances of the case reveal that the party accused of being an accomplice was not a willing accomplice to the crime committed by the author, but was a willing accomplice to a lesser crime, the penalty applied to the accomplice shall be the penalty for the act that it was his intention to commit.”

- Article 366 of the Criminal Code, which provides in pertinent part that “The penalty for any natural person who aids, instigates or conspires in the commission of the acts described in the preceding paragraph shall be half the period of incarceration, plus special disqualification for a period equal to the period of incarceration.”

“Legal persons who take part in any of the acts described above shall face the following penalties:

(1) Those established under paragraph two of Article 369 of the Penal Code, or

(2) A fine of one hundred thousand (L.100,000) to one million Lempiras (L.1,000,0000) depending on the seriousness of the offense; or double the benefit obtained, or

(3) A combination of the two.”

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 a set of provisions relevant to the promotion of the purposes of the Convention.

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The United States suggests deleting the paragraph which appears in strikethrough at the end of this NOTE, and in this regard, makes the following comment:

“The U.S. considers it inappropriate for the Committee to directly recommend such specific changes to a law. Rather, the Committee should comment on the law as it stands, and make recommendations for improvement – and not get into the business of legislative drafting.”


“The comment is appropriate; nevertheless, if the Committee has specific recommendations in the wording of a given rule or provision, and these are admissible, as in the case at hand, we see no reason why they should not be accepted, since their implementation is practicable.”

Nonetheless, the Committee considers that the Republic of Honduras should complement and modify certain provisions in the legal framework, by taking the following considerations into account:.

Firstly, the Committee notes, with respect to Article VI(1)(a), that although Article 361 of the Criminal Code refers to “public officials and employees”, Article 362 refers only to “public officials”. In addition, the Committee considers that in order to more fully comply with the provisions of the Convention, Articles 361, 362 and 363 of the Criminal Code, which refer to the solicitation or acceptance of bribes in exchange for an act or omission connected to the performance of public functions, should extend not only to public officials and employees, but also to those who perform public functions, as provided for by Article VI(1)(a).

In addition, the Committee observes that neither Articles 361 nor 362 refer specifically to the solicitation or acceptance of favors, nor to the solicitation or acceptance of bribes either for personal benefit or for the benefit of third parties.


The United States suggests deleting the text which appears in strikethrough in the following paragraphs.

In light of the above considerations, and to more fully reflect the elements specified in Article V(1)(a) of the Convention, the Committee considers that the following Articles of the Criminal Code should be modified by including the text that appears in bold and italics as follows:

- Article 361. “Any public official, employee or a person who performs public functions, who solicits, receives or accepts, either on his own or through third parties, handouts, gifts, favors, offers, promises or any other undue advantage for himself or another person or entity, in exchange for performing any act that violates his or her duties and constitutes a crime shall be punished with imprisonment for a period of five (5) to seven (7) years, plus absolute disqualification from public office for double the period of his or her incarceration, separate and apart from the penalty incurred by reason of the crime committed in exchange for the handout or promise.”

- Article 362. “Any public official, employee or a person who performs public functions, who directly or indirectly solicits, receives or accepts handouts, gifts, favors, offers, promises or any other

39

undue advantage for himself or another person or entity, to perform an unjust but not criminal act relative to his or her office shall face imprisonment for a period of two (2) to five (5) years. If the act is never consummated, then the defendant shall receive a sentence of one (1) to three (3) years. In either case, the official shall be disqualified from public office for double the period of his or her incarceration.”

The Committee will formulate a recommendation with respect to the modification of Articles 361 and 362 of the Criminal Code in the manner indicated above. (See Recommendations 3.1.a and 3.1.b in Section 3 of Chapter III of this report)In addition, the Committee notes an absence of provisions addressing the situation where a public official or employee solicits or accepts a bribe in exchange for committing an act in the performance of his public functions, where that act is neither illicit or unjust, as required by Article V(1)(a). It should be noted in this regard, that the study prepared within the framework of a technical cooperation project for the ratification and implementation of the Convention, executed by the OAS with financial cooperation from the Inter-American Development Bank and with the participation of the National Anticorruption Council and the Department of Administrative Probity, titled “Adapting Honduras Criminal Legislation to the Inter-American Convention against Corruption”, notes that “It is clear that Honduran law places emphasis on the type of act that the official or employee commits; in Article 361, it has to be an act that “constitutes a crime,” while in Article 362 it has to be an “unjust” act. Language of this nature in laws has the effect of narrowing the much broader scope of application enforcement that the Convention intends.” 40 Taking the foregoing into consideration, the Committee will formulate a recommendation. (See Recommendation 3.2 in Section 3 of Chapter III of this report)


The United States suggests replacing the word “application” with the word “enforcement” in the foregoing paragraph.

In addition, the United States suggests replacing the phrase “considers that the Republic of Honduras could benefit from having provisions in place which” with the words “notes the absence of”, in the following paragraph:

With respect to Article VI(1)(c) of the Convention, the Committee recognizes that Honduras has provisions, as transcribed above in section 3.1, which relate to this paragraph. Notwithstanding, the Committee considers that the Republic of Honduras could benefit from having notes the absence of provisions that in place which specifically address and sanction particular acts or omissions by public officials or employees with respect to their functions, committed with the purpose of illicitly obtaining benefits for themselves or another. In this regard, the Committee will formulate a recommendation. (See Recommendation 3.3 in Section 3 of Chapter III of this report)

With respect to Article VI(1)(d), the Committee notes an absence of provisions addressing or sanctioning the fraudulent use or concealment of property derived from any of the acts referred to in Article VI. In this regard, the Committee will formulate a recommendation. (See Recommendations 3.4 in Section 3 of Chapter III of this report)

With respect to Article VI(1)(e) of the Convention, the Committee observes that with the exception of Article 362 of the Criminal Code, which criminalizes the attempted solicitation or acceptance of a bribe in exchange for carrying out an unjust act, there is an absence of provisions criminalizing the attempted commission of the other corruption offenses provided for by Article VI.1. The Committee

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will formulate a recommendation in this regard. (See Recommendation 3.5 in Section 3 of Chapter III of this report)

Similarly, the Committee notes that Article 366 of the Criminal Code does not refer to those individuals who act as an accessory after the fact with respect to corruption offenses, as required by Article V(1)(e) of the Convention. The Committee will formulate a recommendation in this regard. (See recommendation 3.6 in Section 3 of Chapter III of this report)

In addition, the Committee notes that while Article 366 of the Criminal Code criminalizes assisting, instigating, or conspiring to bribe a public official, there is an absence of provisions addressing participation in the form of assisting, instigating, or serving as an accessory after the fact, in the commission or attempted commission of the solicitation or acceptance of bribes (Article V(1)(a)), as required by Article VI(1)(e) of the Convention. The Committee will formulate a recommendation in this regard. (See Recommendation 3.7 in Section 3 of Chapter III of this report)

Similarly, other than Article 366, the Committee notes that there do not appear to be any provisions covering collaborations or conspiracies to commit corruption offenses, as also called for by Article VI(1)(e) of the Convention. In this regard the Committee takes note, as discussed in the study on “Adapting Honduras Criminal Legislation to the Inter-American Convention against Corruption”, of the possible Constitutional limitations to criminalizing conspiracy to commit corruption offenses, due to the Constitutional right to freedom of association.41 Bearing this situation in mind, the Committee will formulate a recommendation. (See Recommendation 3.8 in Section 3 of Chapter III of this report)

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

With respect to results in this field, the response of Honduras to the questionnaire notes as follows:

”The effect on the investigation and punishment of the acts of corruption covered by our legislation and the acts related to the forms of corruption listed in Article VI 1. of the Convention has been quite positive.

The cases currently under way and those already brought by the Office of the Special Anti-Corruption Prosecutor, a dependency of the Public Prosecutions Service, total 104 in the last four years, 13 of which have resulted in guilty verdicts, 12 (129 temporary in temporary stays and 12 in definitive stays.

According to the information provided by the Supreme Court of Justice, during the 2002-2006 period a total of 2,486 corruption-related cases were tried in the courts of first instance. These are broken down as follows:

Breach of Trust 21Illicit Enrichment 134Misappropriation of Public Funds 212Bribery 480Abuse of Authority 608Infringements of duties by Officials 1,031TOTAL CASES 2,486

41

Tables covering the same period 2002-2006 on the cases tried in the courts of first instance are attached, as are statistics on corruption-related cases (See annexes)”42

The above results indicate that the existing provisions in Honduras which criminalize several of the acts referred to in Article VI of the Convention, have been applied to concrete cases. The Committee considers that this is a positive step towards implementation of the Convention.

However, considering that the Committee does not have information processed in such a way as to allow for a comprehensive evaluation of the results in this field, it will formulate recommendations in this regard. (See general recommendations in Section 4 of Chapter III of this report.)

2 This Meeting was held from March 27 to 31, 2006, at OAS Headquarters in Washington D.C., United States. 3 These documents were received in electronic format on July 17, 2006 and are available at http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/juridico/english/fightcur.html 4 This document is available in electronic format, at: http://www-wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2005/06/29/000160016_20050629134543/Rendered/PDF/327910HN0CPAR01r0official0use0only1.pdf5 Article 3 of the Civil Service Law states in pertinent part that the provisions of the Law will not apply to the following employees:

a) Secretaries and Under-Secretaries of State and their trust employees;b) Personnel of the General Secretariat of the President of the Republic and to the other employees

of the President to the Republic that are in trust positions;c) High-Officials of the Secretariats of State;d) Political Governors and the Members of the Central District Council;e) Members of the Diplomatic and Consular Core;f) Directors General;g) Members of the Civil Service Council;h) “Proveedor” and “Sub-Proveedor” General of the Republic;i) Military Personnel in active service as well as personnel in the Public Security Office;j) Treasurer and Sub-Treasurer General of the Republic and to the Tax and Customs Administrators;k) Directors, Mayors and Penitentiary Heads;l) Those who provide technical of specialized service pursuant to a special contract;ll) Those protected by the Organic Law of Education;m) Those that provide temporary services;n) Presidents and Vice-Presidents of the State Banks;ñ) Members of the National Electronics Council and Council personnel;o) Popularly Elected officials, including those elected by the National Congress;p) Members of the Boards of Directors of the decentralized Organisms;q) State workers paid under the payroll system;

6 Article 21 of the Regulation of the Civil Service Law exempts the following employees from the applicationenforcement of the Law and its Regulation:

1) Secretaries and Under Secretaries of State;2) The following officials or employees in positions of trust within the offices of the Secretaries or

Under Secretaries of State:a) Those who perform secretarial and clerical functions in those offices and whose positions

under the budget are assigned to the units of the Secretaries and Under Secretaries;b) Any drivers whose positions the budget assigns to their units; c) The janitors assigned exclusively to their offices;d) The Administrative Officer in a Secretariat of State;e) Up to a maximum of five employees appointed by each of the Secretaries of State, following

a directive from the Office of the General Director;

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http://www-wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2005/06/29/000160016_20050629134543/Rendered/PDF/327910HN0CPAR01r0official0use0only1.pdf


http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/juridico/english/fightcur.html

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

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

3) The staff of the Secretariat of State of the Office of the President of the Republic and the public servants who will fill the President’s positions of trust. For purposes of this paragraph, staff of the Secretariat of State of the Office of the President of the Republic and the President’s positions of trust, those who discharge their functions within the offices of the two officials and/or are under continuing contract with them;

4) The senior officials with the Secretariats of State;5) The political governors and members of the Central District Municipal Board;6) Members of the Diplomatic and Consular Corps;7) The Directors General;8) Members of the Civil Service Council;9) The Purveyor and Deputy Purveyor General of the Republic;10) The military in active service and staff of the Public Security Office;11) The Treasurer General and Deputy Treasurer General of the Republic;12) The Revenue and/or Customs Administrators;13) The Directors, Mayors and Wardens of penal institutions;14) Staff providing technical or specialized services under a special contract;15) Personnel protected under the Organic Education Act;16) Personnel who provide their services on an interim, provisional or emergency basis;17) The Presidents and Vice Presidents of the State banks;18) The members of the National Board of Elections and its other staff;19) The popularly elected officials, including those elected by the National Congress;20) The members of the Executive Boards of the decentralized agencies;21) The State workers paid under the payroll system.

7 Article 3 of the Statute exempts the following from its applicationenforcement:a) Those who provide temporary services and those who, due to the temporary nature of their work,

are not employees of the Legislative branch;b) Those who are on a probationary period;c) Those workers paid by the payroll system.

8 Pursuant to Article 13 of the Regulation of the Law of Judicial Careers, the following are exempted from the applicationenforcement of the Law and its Regulation:

1) Magistrates of the Supreme Court of Justice,2) Contracted workers,3) Those who provide emergency services,4) Those who provide temporary and irregular services,5) Those who provide seasonal services,6) Medical surgeons, whose services are regulated by the Statutory Law of the Medical Employee,7) Members of the Council on Judicial Careers,8) Hourly employees of the Judicial School.

9 Article 6 of the Statute for Public ministry Careers exempts the following from its applicationenforcement:a) The Attorney General of the Republic and the Assistant Attorney General;

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

1.1. Systems of Government Hiring

The Republic of Honduras has considered and adopted measures intended to establish, maintain and strengthen the systems of government hiring, as discussed in Section 1.1 of Chapter II of this report.

In light of the comments made in the above-noted section, the Committee makes the following recommendations to the Republic of Honduras:

b) The Directors of the Criminal Investigation Department, the Forensic Medicine Department, and the Drug Prevention Department;c) Those who were hired to perform professional or technical services;d) Trust personnel, who shall be identified in the Regulation, and;e) Those who were temporarily appointed.

10 See the response of Honduras to the Questionnaire, at p. 4.11 Ibid, at p. 4.12 See the document prepared by ACI PARTICIPA, at p. 15. 13 See the chart on p. 8 of the document prepared by ACI PARTICIPA.14 See the response of Honduras to the Questionnaire, at p. 4, as well as the document submitted by FPOSC, at p. 5.15 Article 8 of the Law on State Contracting excludes the following from its application:

1) The provision by natural persons of professional or technical services distinct from those regulated by Chapter VII of this Law;

2) The service relationships between public officials and employees, and those contracts regulated by labor legislation;

3) The relationships between the Administration and individuals resulting from the provision of public services that involve payment of a tariff by the individuals or a flat rate;

4) The activities carried out by the Administration with individuals for the sale to the public of stamped or official paper, stamps or seals, alcohol or other revenue streams;

5) Contracts or cooperative agreements between the Central Government and the decentralized institutions, municipalities or other public entities, or those between and among those entities; and

6) The loans or other public lending transactions regulated by the special law on the subject, and the financial services provided by the Central Bank of Honduras or by public finance agencies.

16 See Articles 38, 59 and 61of the Law on State Contracting.

17 In this regard, the response of the Republic of Honduras notes that “In public administration, i.e., the Executive and its dependencies including the decentralized bodies attached thereto, autonomous institutions, decentralized institutions (municipalities) and the other bodies of centralized administration and the Legislative, represented by officials who may be Presidents, Secretaries of State, Directors, General Managers, and the Board of Directors of Steering Councils or their legal representatives.” (p. 7)

In addition, the response notes that although each entity is responsible for its own procurement, “…this does not exclude other State bodies from taking part in [those procurements]…ONCAE’s participation is derived from this precept. The control mechanisms would be implemented through Internal Audits of each institution and inspection bodies, such as the Attorney General’s Office, the Superior Court of Accounts and the Office of Public Prosecutions on certain occasions.” (p. 7)

18 Article 7(j) of the Regulation of the Law on State Contacting provides the following definition of public works contracts: “A contract that the competent authorities conclude with one or more natural or legal persons to build, modernize, repair, preserve, maintain, enlarge or demolish a public work or to perform work

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1.1.1 Taking into account the existing legal initiative, strengthen the systems of government hiring for employees and officials of the Executive branch. To comply with this recommendation, the Republic of Honduras could take the following measures into account:


Argentina suggests modifying recommendation 1.1.1, as follows:

1.1.1 Taking the existing proposed law into account, strengthen public hiring systems for executive branch employees and officials. Promote the effective implementation of the Civil Service

that alters the form or substance of the soil or subsoil, for a price. This includes, most especially, dams, aqueducts, bridges, buildings, roads, ports, airports, electric power transmission lines, and other infrastructure works, as well as dragging, soundings, environmental impact corrections, injections and drilling of the subsoil and similar procedures.”

19 In this regard, the response of Honduras notes that “Pursuant to the provisions of the State Contracting Law, the Law on Administrative Procedures and the Law on Contentious Administrative Jurisdiction, potential bidders may contest: i) a call or invitation to participate in a tender for goods and services; ii) the conditions under which a bidder may participate in a bid; iii) the refusal to receive the application to participate in a bid; iv) the cancellation of a request or invitation to tender; v) the awarding of the contracts; or, vi) the termination of those contractors if the contesting party alleges that the contract was terminated because the decision to award it was based on error. Article 142? of the State Contracting Law, regulates the mechanism for contesting decisions.” (p. 10)

The response further notes that “In the Law on Contentious Administrative Jurisdiction, issues pertaining to Bidding or Competition are treated as a special action; as a result of which they are dealt with much faster, with the result that the court’s decision cannot be appealed against (Article 114 and 119 of the Law in question).” (p. 10)

20 See the response of Honduras to the questionnaire, at p. 6.21 Ibid.22 See the February, 2005 Country Procurement Assessment Report, prepared by the Inter-American Development Bank and the World Bank (“WB/IDB-CPAR”), at p. 22, available in electronic format at: http://www-wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2005/06/29/000160016_20050629134543/Rendered/PDF/327910HN0CPAR01r0official0use0only1.pdf 23 Ibid, at p. 23.24 Ibid, at p. 22.25 See the Response of Honduras, at p. 10.26 Ibid, at p. 6.27 See the WB/IDB CPAR, at p. 6.28 Ibid, at p. 12.29 Ibid, at p. 18.30 Ibid, at p. 19.31 Ibid.32 Ibid, at p. 20.33 See the document submitted by FPOSC, at p. 11.34 See the Response of Honduras, at p. 13.35 Ibid, at p. 12.36 See the Document submitted by ACI PARTICIPA, at. p. 21.37 See the Response of Honduras, at p. 14.38 Ibid.

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Law and its Regulations, and review the consistency of the civil service hiring system for Executive Branch employees and officials with the National Constitution, International Human Rights Treaties signed by the Republic of Honduras and the Inter-American Convention against Corruption. To implement this recommendation, the Republic of Honduras could consider the following measures: In this regard, Argentina notes as follows:

Argentina further notes as follows:

“When amending the recommendation as indicated above, a comment should be added in section “1.1.2. Adaptation of the legal framework and/or other measures,” before the specific analysis of each system:

“ In this respect, as a general observation regarding the current legal framework, the Committee notes that there may be certain inconsistencies between constitutional provisions adopted since 1982 and legal systems preceding that date that, formally, remain in effect. This would be the case with the Civil Service Law (Decree Number 126 of 1968), its Regulations (Agreement Number 175 of 1976) and the Judicial Career Law (Decree Number 953 of 1972).

Something similar might occur with legal systems approved after 1982 that, in some parts, substantially reproduce measures provided in the aforementioned systems. This would be the case of the Labor Law for Legislative Branch Employees (Decree Number 151 of 1993); the Regulations for the Judicial Career Law; the Statute on Careers in the Public Prosecutions Office; and the System Governing the Career of Officials and Employees of the Court of Accounts.

Consequently, later we suggest eliminating recommendation 1.1.7. on “implementing the law as soon as the proposed law takes effect”.

Honduras notes as follows with respect to the foregoing comments:

“Observation on the Comment: We find no inconsistency between the cited constitutional provisions and the different systems or legal regimes adopted since 1982, and those prior to that year, in that they remain in force and their observance is obligatory; in addition, they are not in conflict with the terms of the Constitution.”

a) Modify the Civil Service Law and its Regulation so as to ensure that all who aspire to enter public service have the same opportunity to do so, by eliminating the preferential treatment given to current and former employees. (See Section 1.1.2 of Chapter II of this report)


Honduras notes as follows with respect to measure “a” of recommendation 1.1.1, above:

“Honduras does not agree with this Recommendation. This is because it believes it goes against stability and the administrative career.”

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Argentina suggests modifying measure “a” of recommendation 1.1.1, drafted above, to read as follows:

a. “Amend the Civil Service Law and its Regulations to ensure that those wanting to join the civil service have the same opportunities, eliminating the preferential treatment given to those who already are or have been government employees. Amend the Civil Service Law and its Regulations to ensure equity among those applying for a civil service position, ensuring that no provision will distort the application of objective criteria of suitability in the selection of the employee; in particular, weigh experience in civil service as one more factor among many of equal or greater importance, according to the hierarchy of positions established in the Job Classification Manual and the operational advisability of issuing vacancy notices open to the general public or restricted to those already in the civil service (see Chapter II, Section 1.1.2 of this report).

Honduras notes as follows with respect to the proposed modification of measure “a”, above:

“Comment: This replacement of the original measure is admissible.”

b) Implement provisions requiring publication of the Post Classification Manual, so that the principal requirements for posts can be seen by anyone who wishes to enter public service. (See Section 1.1.2 of Chapter II of this report)

NOTE FROM THE SECRETARIAT # 9A:

Pursuant to the proposal made by the United States discussed above in NOTE # 9, the Secretariat notes that measure “b”, above, be modified to read as follows:

b) Implement provisions requiring publication of the following information:

(i) The Post Classification Manual;

(ii) Information on the rights and protections afforded to employees and applicants in the laws and regulations of Republic of Honduras;

(iii) Information regarding the proper offices, with respective contact information, and the proper form for making a complaint to or an appeal of a determination made by an oversight or administrative body;

iv) Information on the ethical obligations and duties of public service imposed on employees and the penalties for violation, including the standards of conduct for public employees;

v) Information to employees on the duty to report public corruption with information, the form of the report, and the office to which the report should be submitted.” (See Section 1.1.2 of Chapter II of this report)

c) Implement provisions which specifically grant the Civil Service Council, as the body charged with hearing and resolving disputes regarding decisions taken by the Directorate General, the power to overturn the results of a particular selection or take other

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appropriate action, when a violation of the law or irregularity has taken place. (See Section 1.1.2 of Chapter II of this report)

d) Require the official making the selection of a particular candidate to leave a written record justifying his decisions, in those cases where posts are filled through background comparison “oposición de antecedentes”, so that challenges can be made with respect to the selection process for those posts. (See Section 1.1.2 of Chapter II of this report)


Argentina suggests the inclusion of the measures which appear in bold underlined below, noting as follows: “Despite the fact that the appropriateness of some of the suggested measures could vary based on the responses that the Republic of Honduras provides to the questions asked in Chapter 4 of this document, we suggest adding the measures indicated below.”

e) Revise the Civil Service Law and its Regulations to ensure that employees excluded from its application are excluded solely because they carry out policy management/direction functions, or because the type of activity is covered under a specific system. In particular, evaluate the possibility of considering “confidential staff” to mean only those who provide advisory service and/or collaboration with the political authorities, (Ref.: Article 3 of the Law and Article 21 of the Regulations).

Honduras notes as follows with respect to proposed measure “e”, above:

“Comment: Article 5 (26) of the Regulations already defines personnel of trust. In addition, the final paragraph of Art. 265 of the Constitution of the Republic states that directors of decentralized organs are personnel of trust of the executive branch. “

f) Evaluate a change in the Civil Service Law, as relevant, to ensure that licenses are granted to public servants who are appointed to senior positions by political authorities, for the period during which that appointment lasts (Ref.: Articles 4 and 38 of the Law).

Honduras notes as follows with respect to proposed measure “f”, above:

“Comment: Regulations already exist regarding the granting of leaves of absence to civil servants who are elected to political or public office: see Decree No. 72-2002 of April 9, 2002.”

g) Analyze the advisability of including express provisions in the Civil Service Law to ensure the impartiality of the members of the body rating those applying to enter the civil service (Ref.. Article 6(5) and Article 23).

h) Eliminate from the requirements for entering civil service that of “being in possession of the documents needed to establish one’s personal identity” (Ref.:Article 11(1)).

i) Stipulate in the Law or in its Regulations minimum periods for advertising notices of civil service entry examinations, as well as minimum periods during which registration can be accepted from applicants; and include in the content of notices the schedule established and

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places where registrations are accepted and where more information can be obtained regarding the notice.

With respect to additional measure “h” proposed above, Argentina states that:

“This recommendation is based on the following observation from the Argentine experts, which could be included in the section “1.1.2. Adaptation of the legal framework and/or other measures,” in the part relating to Executive Branch hiring systems:

“In that identity is a fundamental right of any citizen that all States are obliged to guarantee, it is inappropriate to establish as a requisite for entering Civil Service “being in possession of the documents needed to establish one’s identity” (Article 11(1) of the Civil Service Law).”

Honduras notes as follows with respect to the foregoing commentary:

“Comment: Honduran nationality is a requirement for entry and, to provide evidence of this, a birth certificate or Identity Card must be submitted (protection of nationality). Accrediting personal identity refers to the presentation of the aforesaid documents and, most particularly, the Identity Card.”

1.1.2 Strengthen the systems of government hiring for employees and officials of the Legislative branch by issuing regulations for the Statute for Legislative Employees, as called for by Article 2 of the Stature. This Regulation should take the following measures into account:


Argentina suggests modifying recommendation 1.1.2, as follows, explaining that, “We suggest replacing the recommendation as indicated above, for the same reasons as the recommendation made for the Executive Branch.”

1.1.2. Strengthen civil service hiring systems for Legislative Branch employees and officials by issuing the regulations for the Labor Law for Legislative Branch Employees, as established in Article 2 of that Law. These Regulations must take the following measures into account Modify the civil service hiring system for Legislative Branch employees and officials, so as to improve their consistency with the National Constitution, International Human Rights Treaties signed by the Republic of Honduras and the Inter-American Convention against Corruption. To implement this recommendation, the Republic of Honduras could consider the following measures:

Honduras notes as follows with respect to the foregoing proposal:

“Comment: The above recommendation is relevant; but in the case of the legislative branch, a recommendation should be made for the issuing or adopting of Regulations for that branch’s Labor Statute.”

In light of the suggestion made by Honduras above, the Secretariat proposes the insertion of a new measure “a”, which would read as follows:

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a) Issue Regulations corresponding to the Labor Stature for Legislative Branch Employees.

a) Implement provisions requiring the filling of posts in the Legislative Branch to be carried out based on the principles of merit and equity. (See Section 1.1.2 of Chapter II of this report)

b) Implement provisions detailing the functions and operation of the Personnel Office of the National Congress, and provide the Office with the resources necessary to fully carry out those functions and operations. (See Section 1.1.2 of Chapter II of this report)

c) Develop mechanisms for advertising public service vacancy announcements, including through the use of mass media, such as the Internet, and also provide minimum periods for advertising notices of civil service entry examinations, as well as minimum periods during which registration can be accepted from applicants; and include in the content of notices the schedule established and places where registrations are accepted and where more information can be obtained regarding the notice. (See Section 1.1.2 of Chapter II of this report)


Argentina suggests the inclusion of the text which appears in the above paragraph in bold and underlined.

Honduras notes as follows with respect to the foregoing proposal:

“Comment: The amendment of the measure or recommendation is admissible, but the approval of the Posts and Salaries Manual must also be recommended.”.

Honduras notes as follows with respect to measure “d” of recommendation 1.1.2, below:

“…judicial challenge applies pursuant to Article 15 of the Statute.”

d) Implement systems allowing for challenges to be made to decisions taken by the Personnel Office of the National Congress, both at the administrative and judicial level, in particular, with respect to the selection process. (See Section 1.1.2 of Chapter II of this report)


Argentina suggests the inclusion of the following additional measures, noting that “Despite the fact that the appropriateness of some of the suggested measures could vary based on the responses that the Republic of Honduras provides to the questions asked in Chapter 4 of this document, we suggest adding the measures indicated below.”

e) Eliminate the possibility of ending the employment relationship without just cause, whether during the probation period or once the position is made effective (Ref.: Article 7; Article 10(e); and Article 14).

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Honduras notes as follows with respect to the new proposed measure “e”, above:

“Comment: It is set out in the Law as a protective measure. The nominating authority is empowered to cancel the appointment of the civil servant should the reports of the immediate superior responsible for conducting the periodic evaluations of the probationary employee indicate a lack of the required aptitude for occupying the post, noncompliance with the duties thereof, or habits or general behavior that would not justify continued employment in the service. (Article 146 of the Regulations to the Civil Service Law.)”

f) Issue a law establishing a disciplinary system based on respect for the right to due process and a legal defense, with objective criteria for the definition of offenses and classification of their seriousness that does not defer these to the regulations (Ref.: Articles 17 and 18).

Honduras notes as follows with respect to the new proposed measure “f”, above:

“Comment: The rights of defense and due process, as rights and guarantees, are enshrined in the Constitution of the Republic (Articles 82 and 90) and are respected in the Civil Service Law and its Regulations. With regard to the reference made by the Law to the Regulations: we understand that the rules and provisions of the Law are general in nature and, in most instances, are expanded or complemented by the Regulations. “

Honduras suggests the inclusion of two additional measures in recommendation 1.2.1, addressing the following issues:

“* The enactment of regulations establishing merit-based personnel selection; and,

* The production or publication of the Posts and Salaries Manual.”

The Secretariat notes that the above issues could form the basis for new measures “g” and “h”, as follows:

g) Issue provisions which provide that the selection of personnel in the Legislative Branch shall be based on merit.

h) Issue a Posts and Salaries Manual for positions in the Legislative Branch.

1.1.3 Strengthen the systems of government hiring for employees and officials of the Judicial branch. To comply with this recommendation, the Republic of Honduras could take the following measures into account:

a) Modify the Law on Judicial Careers and its Regulation so as to ensure that all who aspire to enter public service have the same opportunity to do so, by eliminating the preferential treatment given to current and former employees. (See Section 1.1.2 of Chapter II of this report)


Honduras notes the following with respect to measure “a”, above:

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“For the reasons set out in the body text of this Response, we do not agree with this Recommendation.”

Argentina suggests modifying recommendation 1.1.3 and measure “a”, to read as follows:

1.1.3 Strengthen civil service hiring systems for Executive Branch employees and officials. Evaluate the consistency of the civil service hiring system for Judicial Branch employees and officials with the National Constitution, International Human Rights Treaties signed by the Republic of Honduras and the Inter-American Convention against Corruption. To implement this recommendation, the Republic of Honduras could consider the following measures:

a) Amend the Judicial Career Law and its Regulations to ensure that those wanting to enter civil service have the same opportunities, eliminating preferential treatment given to those who already are or have been government employees Amend the Judicial Career Law to ensure equity among those seeking a position in that career, ensuring that no provision will distort the application of objective criteria of suitability in the selection of the employee; in particular, weigh experience in civil service as one more factor among many of equal or greater importance, according to the hierarchy of positions established in the Job Classification Manual and the operational advisability of issuing vacancy notices open to the general public or restricted to those already in the career (see Chapter II, Section 1.1.2 of this report).

Honduras notes as follows with respect to the foregoing suggestion:

“Comment: The modification of this paragraph has been reviewed and accepted.”

b) Eliminate the wide discretion enjoyed by the Personnel Selection Commission, by establishing objective criteria governing the manner in which the Commission chooses the three candidates that are submitted to the Supreme Court for appointment, from among qualified candidates. (See Section 1.1.2 of Chapter II of this report)

c) Implement provisions requiring publication of the Post Classification Manual, so that the principal requirements for posts are available and can be seen by anyone who wishes to enter public service. (See Section 1.1.2 of Chapter II of this report)

d) Implement provisions which specifically grant the Council of Judicial Careers, as the body charged with hearing and resolving disputes regarding decisions taken by the Directorate of the Service, the power to overturn the results of a particular selection or take other appropriate action, when a violation of the law or irregularity has taken place. (See Section 1.1.2 of Chapter II of this report)



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e) Establish different systems for hiring those who serve in the judiciary and those who carry out administrative tasks at their orders, with different selection and removal procedures, so as to guarantee both the independence of the former and the suitability of both.

Honduras notes as follows with respect to the new proposed measure “e”, above:

“Comment: For the judicial branch, selection procedures for jurisdictional personnel are established in the Judicial Career Law; for administrative personnel, different systems have been followed internally; and with the enactment of the Law of the Judicature Council, the issues raised will all be guaranteed in full.”

f) Eliminate conditions for assuming and remaining in a position that are discriminatory or could amount to improper interference in people’s private lives [Ref. Articles 23(b) and Article 53( a) of the Judicial Career Law, and Articles 52( b) and Article 172( a)of the Regulations].

g) Analyze the possibility of providing regulations for Article 25 of the Judicial Career Law so as to limit the secret nature of position reinstatement sessions to situations specifically established by regulation and prior well-founded action of the Court, as well as to eliminate the secret nature of the voting on such measures.

Honduras notes as follows with respect to the foregoing suggestions:

“Comment: The judicial branch believes that regulating the aforesaid Article 25 means restricting only the confidential nature of sessions and, when applicable, the secret voting.

Article 25. Dismissal from a judicial post or position will not prevent the appointment of that same person at a later date, provided that the Court has ordered that the dismissed employee be rehabilitated for reappointment in the future. Rehabilitation procedures shall not be admissible until at least three years have passed since the dismissal. The Court will resolve such issues in private sessions and by secret votes, after considering the background to the case and other information deemed relevant by the Court. Rehabilitation may only be ordered by the unanimous vote of the magistrates. (JUDICIAL CAREER LAW, CHAPTER VI, REHABILITATION.)”

h) Include, in the content of personnel selection notices, indication of a location where interested parties may obtain more information, as well as indication of an Internet site and electronic address for making the same query and possibly obtaining registration forms and other application documents needed (Ref.: Article 59 of the Regulations of the Judicial Career Law).

Honduras notes as follows with respect to proposed measure “h”, above:

“Comment: In practice the judicial branch has been using means to inform interested parties of the relevant information, but we accept the corresponding recommendations on account of the need to introduce regulations by means of procedures and standards.

Article 59. Announcements should indicate the following:

a) Job title.

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b) Minimum schooling requirements. c) Minimum experience requirements.

ch) Brief description of the nature and duties of the position. d) Salary grade. e) Probationary period.f) Geographical location of the posting. g) Limit date for receiving applications and others as defined by need.(REGULATIONS OF THE JUDICIAL CAREER LAW, CHAPTER VI, SECTION I,

PERSONNEL SELECTION.)”

i) Change the text of Article 69 of the Judicial Career Law (and Article 192 of the Regulations) so as to make it consistent with the right to stability embodied in Articles 51 of that Law and Articles 257 and 317 of the Constitution, so that it is impossible to indirectly remove an employee without just cause and the employee has the option to be reinstated or receive an indemnity.

Honduras notes as follows with respect to proposed measure “i”, above:

“The judiciary finds this comment to be appropriate.

Article 51 of the Judicial Career Law. Judicial civil servants shall enjoy the right of stability when they enter the service correctly, and they may only be removed when they incur in reasons for dismissal, as indicated in this Law and its Regulations. (JUDICIAL CAREER LAW, CHAPTER X, DUTIES, INCOMPATIBILITIES, AND RIGHTS; III. RIGHTS.)

Article 69 of the Judicial Career Law. A judicial civil servant removed from his position without grounded reason shall be entitled to choose between reinstatement in that position, as described in the previous article, or receiving indemnification equal to one month’s salary for every year of service up to a maximum of fifteen (15) years, when his reinstatement is not possible or appropriate in accordance with the ruling of the Judicial Career Council; the amount of this indemnification shall be paid on one single occasion, within a maximum period of thirty (30) days. In this case, it shall be increased by an indemnification on the grounds of prenotification equal to one month’s salary for every year of service up to a maximum of two (2) years.

Article 192 of the Regulations. A judicial civil servant removed from his position without grounded reason shall be entitled to choose between reinstatement in that position, as described in the previous article, or receiving indemnification equal to one month’s salary for every year of service up to a maximum of six years, when his reinstatement is not possible or appropriate in accordance with the ruling of the Judicial Career Council. In any event, this indemnification shall be increased by the amount equal to one month’s salary for prenotification, in those cases in which communication thereof was not served. (REGULATIONS TO THE JUDICIAL CAREER LAW, CHAPTER XIII, DISMISSAL REGIME.)”

1.1.4 Strengthen the systems of government hiring for employees and officials of the Public Ministry, by implementing provisions of procedures systems specifically allowing challenges to be made with respect to personnel selection decisions, both at the administrative and judicial levels. (See Section 1.1.2 of Chapter II of this report)


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Honduras suggests replacing the word “systems” for the words “provisions or procedures” in foregoing recommendation 1.1.4, above.


a) Evaluate the establishment of provisions making it possible to combine competitive examinations and competitive comparison of employment histories so as to guarantee transparency in the process of selecting those entering civil service.

b) Stipulate in the Law or its Regulations the minimum period for advertising notices of entry examinations for the Public Prosecutions Office as well as minimum periods during which registration will be accepted from applicants; and include in the content of notices the established schedule and the places where registrations are accepted and where more information can be obtained on the notice.

c) Establish provisions that specifically grant to the Personnel Board the power to invalidate the results of a particular selection or take pertinent measures when the law has been violated or there has been some irregularity.

d) Provide for the possibility of considering objective parameters when drawing up rosters of selected candidates, which may be those established in Articles 15, 16 and 27 of the Statute on Careers in the Public Prosecutions Office.

e) Specify in Article 33 of the Statute on Careers in the Public Prosecutions Office that the circumstances that justify emergency personnel appointments, indicated in paragraphs a) to d), must exist “simultaneously.”

f) Define offenses by more clearly specifying the types of conduct included in the Disciplinary System of the Public Prosecutions Office Law, avoiding any reference to the Statute or its regulations (Ref.: Chapter III of Title V of the Public Prosecutions Office Law and Article 55 of the Statute on Careers in the Public Prosecutions Office).

g) Establish a time limit for cases in which sanctions involving loss of promotion rights are imposed. - Consider the possibility of correcting the situation of those employees who were suspended without pay for purposes of reviewing the punishment of dismissals that were later declared unfounded.

h) Consider the possibility of correcting the situation of those employees who were suspended without pay for purposes of reviewing the punishment of dismissals that were later declared unfounded.

In addition, Argentina presents the following observations:

“In addition, when the systems for employees serving as Prosecutors and employees performing administrative functions are not differentiated, measures could be recommended like those indicated for the Judicial Branch with respect to the advisability of establishing such differences. This could

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involve, when not up to the unjustly removed employee, the option between reinstatement to the position or collection of an indemnity.”

1.1.5 Strengthen the systems of government hiring for employees and officials of the Superior Court of Accounts. To comply with this recommendation, the Republic of Honduras could take the following measures into account:

a) Modify the Regimen for Careers of Officials and Employees of the Superior Court of Accounts, which provides that external competitions only be held when a post cannot be filled through internal competition, so as to provide an equal opportunity for all to enter public service. (See Section 1.1.2 of Chapter II of this report)


Honduras notes as follows with respect to measure “a”, above:

“For the reasons set out in this document’s body text, we do not agree with this Recommendation.”

b) Implement systems specifically allowing challenges to be made with respect to personnel selection decisions, both at the administrative and judicial levels. (See Section 1.1.2 of Chapter II of this report)


The United States suggests deleting recommendation 1.1.6, which appears in strikethrough below:

Honduras proposes adding the word “strengthen”, which appears in bold and underlined in recommendation 1.1.6, below.

1.1.6 Develop training programs for those responsible for managing public service selection and staffing processes, as well as strengthen training and induction programs for those who have recently entered the public service, so as to allow all employees to understand their duties and the functions expected of them, their responsibilities and obligations, as well as the consequences of non-compliance. (See Section 1.1.2 of Chapter II of this report)


Argentina suggests deleting recommendation 1.1.7, which appears in strikethrough below, due to the fact that it now coincides with the new recommendation 1.1.1 proposed above by Argentina.

Honduras suggests including the words “in a general manner”, which appear in bold and underlined in recommendation 1.1.7, below.

1.1.7 Apply the Civil Service Law and its Regulation in a general manner to the personnel selection system in the Executive branch, until such time as the existing legal initiative has entered into force. (See Section 1.1.3 of Chapter III of this report)

1.2. Government Systems for the Procurement of Goods and Services

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The Republic of Honduras 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.

In light of the comments made in the above-noted section, the Committee suggests that the Republic of Honduras consider the following recommendations.

1.2.1. Strengthen the procurement systems with and without public tenders. To comply with this recommendation, the Republic of Honduras could take the following measures into account:



1.2… Evaluate the possibility of incorporating in the Law on State Contracting a provision establishing a consultation procedure that would consist of making available to the public for a specific period of time, prior to publication of a call for bids, the draft Bidding Terms and Conditions and Specifications, so that interested parties could submit comments. This would provide an opportunity for review of bidding forms by the private sector, civil society organizations and any other interested party. This comments procedure could be applied to high value procurement and complex subjects. Subjects open to public comment could include technical as well as financial, administrative, and legal matters.

Honduras notes as follows with respect to the above proposal:

“Comment: The possibility addressed by the recommendation is covered by the Law on State Contracting and with the creation of the Consultative Committee, as set out in Article 30; in addition, a period of observations of a given duration is also provided for (Art. 105 of its Regulations).”

Honduras proposes including replacing the words “Implement provisions outlining clear procedures” with the words “Improve the procedures”, in measure “a”, below.

In addition, Honduras suggests deleting measure “b”, which appears in strikethrough below, noting as follows:

“We do not agree with this Recommendation because the LCE contains provisions that require the stipulation of the reasons why such purchases have to be kept secret.”

a) Improve the Implement provisions outlining clear procedures for the selection of contractors in those situations where direct contracting is used. (See Section 1.2.2 of Chapter II of this report)

b) Review Article 63(4) of the Law on State Contracting, so as to define the types of situations that may give rise to a decision that government operations should remain secret, and thus, that direct contracting should be used. (See Section 1.2.2 of Chapter II of this report)

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The United States makes the following comment with respect to measure “c”, below:

“This statement would require the procuring activity to inform unsuccessful suppliers prior to award of the evaluation outcome. This is a practice that the U.S. strictly adheres to when using "negotiation" as a procurement procedure. We do not inform the unsuccessful supplier when using "sealed bids". We use sealed bids when only price is an evaluation factor; when we have other factors in evaluation such as technical or managerial competition we negotiate.”


“In a public or private bidding process there can be no negotiation, since it is bound by the terms offered in the bids.”

Argentina suggests modifying measure “c”, which follows this NOTE, to read as follows:

c) Implement provisions requiring government entities to notify interested parties on the outcome of bid evaluations, in cases where this is legally appropriate , prior to the final selection decision, in order to allow those parties to submit comments, observations or objections prior to the award (see Chapter II, Section 1.2.2 of this report).

With respect to this proposed modification, Argentina notes that:

“The addition indicated in the preceding paragraph is meant to clarify the wording of the suggested measure, since under the direct contracting framework, for example, there is no evaluation separate and distinct from the decision regarding selection.

In addition, we suggest deleting the phrase “comments, observations or...,” since, technically, the important thing at this procedural stage is to guarantee the right to submit objections. With respect to “comments or observations,” we have made – see paragraph above – a specific recommendation to ensure a broad system of transparency and access to information.”

c) Implement provisions requiring government entities to notify interested parties on the outcome of the evaluation of bids prior to the final selection decision, in order to allow those parties to submit comments, observations, or challenges prior to award. (See Section 1.2.2 of Chapter II of this report)


Honduras proposes deleting measure “d”, which appears below in strikethrough, noting as follows:

“We do not agree with this Recommendation because in order to participate in a closed call for proposals or bidding process, the law requires that participants be registered in the Register of Contractors and Suppliers.”

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d) Implement provisions regulating the selection of suppliers that will be invited to participate in a tender, in the cases of private tender or private competition. (See Section 1.2.2 of Chapter II of this report)


The United States makes the following comment with respect to measure “e”, below:

“We agree with the comment. U.S. rules for modifying contracts are very strict. No modification can be made that extends beyond the basic scope of the contract, otherwise known as "new work". A contracting activity can add more of the same. But this too, if done in extreme, can constitute new work. We suggest a limitation of the use of this authority.”


“The comment is appropriate. The country has parameters that restrict that ability.”

Argentina suggests modifying measure “e”, below, to read as follows, noting that “the word ‘discretionality’ does not mean arbitrariness or abusive exercise, but rather legal authorization for the agency to make a subjective assessment.

e) Revise Article 121 of the Law on State Contracting, which allows for contract modifications based on the “public interest”, in order to eliminate the broad discretion that this provision currently allows so as to introduce guidelines designed to avoid arbitrary decisions by officials in the exercise of such prerogatives. (See Section 1.2.2 of Chapter II of this report)

Honduras proposes deleting measure “e”, which appears in strikethrough below, noting as follows:

“We do not agree with this Recommendation because we believe such broad discretion does not exist, in accordance with the terms of the Law on State Contracting and its Regulations.”

e) Revise Article 121 of the Law on State Contracting, which allows for contract modifications based on the “public interest”, in order to eliminate the broad discretion that this provision currently allows. (See Section 1.2.2 of Chapter II of this report)


The United States makes the following comment with respect to measure “f”, below:

“What is meant by the publication of the "justification for contract award." The U.S. publishes a notice that announces a contract.”


“The comment is for the Committee Secretariat. However, in Honduras the awarding resolution must be grounded; in other words, the reasons why the winner was selected must be specified.”

With respect to measure “f”, below, Argentina notes as follows:

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“What is the Secretariat referring to when it suggests provisions establishing “publication of the justification” for contract awards? Does this refer to publication of the objective evaluation criteria that determined the award?”

The Secretariat notes that the “justification” for contract award might be a memorandum or document from the decision-making authority specifying the reasons for contract award, i.e., lowest price, lowest priced technically acceptable proposal, trade-off, etc.

Honduras proposes deleting the words “requiring publication of the justification for contract award, as well as provisions”, which appear in strikethrough in measure “f”, below, as well as the inclusion of the word “documentation”, which appears in bold and underlined.

f) Implement provisions requiring publication of the justification for contract award, as well as provisions allowing anyone to access the contract award documentation and selection files. (See Section 1.2.2 of Chapter II of this report)


The United States makes the following comment with respect to measure “g”, below:

“This statement would establish "citizen overseers" or watchdogs to monitor the evaluation process. (The U.S. has no such group). We have a challenge procedure provided by the General Accounting Office and the Federal courts.”


“We agree that the recommended mechanism is not contained in the vast majority of statutes. The State designates supervisors for works and projects through competitive procedures, and oversight of execution is the task of the Internal Auditors and the Superior Court of Accounts, as the body charged with controlling public resources. As in the United States of America, challenge procedures are provided for.”

Honduras proposes eliminating measure “g”, which appears below in strikethrough, noting as follows:

“We believe that it would be difficult to set this provision down in a contracting law, and so we do not agree with its inclusion. In addition, in the relevant part of this document we have shown that the legal possibility of civil society participation in such processes does exist.”

g) Implement provisions that allow for the establishment of citizen overseers or watchdogs qualified to monitor the execution of contracts where the nature, importance or magnitude so warrants. (See Section 1.2.2 of Chapter II of this report)

1.2.2. Strengthen the existing control mechanisms, by developing and implementing provisions that provide for the selection of the individual or entity responsible for audit, control and oversight of contracts of a certain size or complexity. (See Section 1.2.2 of Chapter II of this report)


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Honduras proposes deleting recommendation 1.2.2, above, which appears in strikethrough, noting that:

“We believe that this Recommendation is unnecessary, since its contents already exists in the country.”

The United States makes the following comment with respect to recommendation 1.2.3, below:

“Does not Honducompras not already fulfill this? 1.2.4 is a more appropriate recommendation..”


“The comment is appropriate.”

Honduras proposes replacing the words “Develop and implement”, with the word “Strengthen” in recommendation 1.2.3, below.

1.2.3. Strengthen Develop and implement electronic procurement systems, so that the acquisition of goods and services may be carried out through those means. (See Section 1.2.2 of Chapter II of this report)


Argentina suggests modifying recommendation 1.2.4, below, to read as follows, noting that “We suggest the addition in order to standardize the terminology used in the report.”

1.2.4. Strengthen HONDUCOMPRAS, by ensuring where possible, that State entities that use the national procurement system publish all of their available procurements through the HONDUCOMPRAS portal. (See Section 1.2.2 of Chapter II of this report)

1.2.4. Strengthen HONDUCOMPRAS, by ensuring where possible, that State entities publish all of their available procurements through the HONDUCOMPRAS portal. (See Section 1.2.2 of Chapter II of this report)

1.2.5. Strengthen the procurement systems for public works contracts. To comply with this recommendation, the Republic of Honduras could take the following measures into account:


Argentina notes as follows with respect to measures “a” and “b”, which appear below in strikethrough:

“With respect to recommendation 1.2.5, ‘strengthen procurement systems for public works contracts’, we suggest reconsidering the inclusion of measures a) and b) suggested by the Secretariat, since reference to planning policies for public works and their impact on the value of neighboring properties could involve aspects that exceed the framework for review of the points considered in this round.”

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Honduras proposes eliminating measures “a” and “b”, which appear in strikethrough below, noting as follows:

“These two recommendations are not covered by the questionnaire and bear no relation to the purpose of the evaluation.”

a) Carry out, prior to the start of public works contracts, impact studies to determine such aspects such as neighboring properties that may gain or lose value, as well as cost-benefit ratios. (See Section 1.2.2 of Chapter II of this report)

b) Develop and implement provisions and mechanisms to ensure that the State will collect its share of the increased value of neighboring properties or pay its share of any decrease in their value and of any environmental damage, as well as determine whether the anticipated cost-benefit ratio has been achieved as a result of contract execution. (See Section 1.2.2 of Chapter II of this report)


Honduras proposes eliminating measure “c”, which appears in strikethrough below, noting that:

“Delete this Recommendation, since it is the same as No. 1.2, subsection 1.2.2, paragraph (g).”

With respect to this point, the Secretariat notes that while measure “g” of recommendation 1.2.2 addresses the establishment of a specific citizen overseers or watchdogs charged with monitoring the execution of certain types of projects, measure “c”, below, contemplates provisions which simply allow citizens in general, to monitor public works contracts.

c) Develop and implement mechanisms allowing for citizen oversight over public works contracts, covering the different stages of the procedure for the procurement of public works, notwithstanding the existing institutional internal and external controls. (See Section 1.2.2 of Chapter II of this report)

1.2.6. Strengthen the mechanisms for challenging aspects of the procurement process. To comply with this recommendation, the Republic of Honduras could take the following measures into account:

a) Implement specific provisions allowing for challenges to the procurement process at the administrative level, which detail the procedure to be followed by government entities in handling and responding to such challenges and appeals, notwithstanding the procedures provided for by the Administrative Procedure Law and the Law on Contentious Administrative Jurisdiction. (See Section 1.2.2 of Chapter II of this report)

b) Ensure that the Superior Court of Accounts investigates complaints alleging irregularities in the application of the procurement system, as provided for by Article 70 of the Organic

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Law of the Superior Court of Accounts, and ensure that the Court has sufficient personnel and resources to carry out this function. (See Section 1.2.2 of Chapter II of this report)


Honduras proposes eliminating measure “b”, above, noting as follows:

“This task is already being carried out by the Superior Court of Accounts and so we do not agree.”

The United States suggests deletion of the text which appears in strikethrough in the paragraph that follows this NOTE, and the insertion of the text which appears in bold and underlined.

Honduras proposes modifying recommendation 1.2.7, to read as follows:

1.2.7. “Take the steps necessary Make best efforts with respect to external funds to move towards elimination of the fiduciary fence that applies to contracts funded therefrom international donors and lenders, by fully implementingon of the Law on State Contracting and its Regulation, so that funds provided by international donors and lenders will be managed pursuant to the national procurement system. To comply with this recommendation, the Republic of Honduras could take the following into account:

1.2.7. Take the steps necessary to move towards elimination of the fiduciary fence that applies to contracts funded by international donors and lenders, by fully implementingon of the Law on State Contracting and its Regulation, so that funds provided by international donors and lenders will be managed pursuant to the national procurement system. To comply with this recommendation, the Republic of Honduras could take the following into account:


With respect to the measures under recommendation 1.2.7, Argentina makes the following commentary and suggestion:

“With respect to recommendation 1.2.7, we call attention to the possible international agreement status of provisions establishing the application of each cooperation agency’s rules and the resulting difficulty in making this recommendation operative.

Measures a), b), c) and d) of Recommendation 1.2.7. in the Preliminary Report from the Secretariat are autonomous measure not directly and exclusively related to the so-called “fiduciary fence,” so that we suggest regrouping them (see page 15 of this report) as measures designed to implement another recommendation that could be defined as “Strengthen the national procurement system.”

With respect to measure “e” in particular, Argentina further notes that:

“This measure “e)” is the one measure that could be exclusively associated with the subject of the “fiduciary fence.” The other suggested measures, as stated earlier, should be part of a new separate Recommendation that could be titled: “Strengthen the national procurement system,” whose suggested measures would be measures a), b), c) and d) of Recommendation 1.2.7. of the Preliminary Report from the Secretariat.”

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The Secretariat notes that pursuant to Argentina’s suggestions, measure “e” would be the sole measure of recommendation 1.2.7, and measures “a”, “b”, “c”, and “d”, would fall under a new recommendation 1.2.8, which as proposed by Argentina, would read as follows:

1.2.8. Strengthen the national procurement system. To implement this recommendation, the Republic of Honduras could take the following into account:

a) Ensure that the Procurement Policy Office (ONCAE) is fully operational, and that is has the personnel and resources necessary to adequately carry out its prescribed functions. (See Section 1.2.3 of Chapter II of this report)


Honduras suggests modifying measures “b”, c”, and “d”, by the elimination of the words in each measure that appear in strikethrough, and the inclusion of those words that appear in bold and underlined.

b) Ensure that the Superior Court of Accounts has sufficient personnel and resources to carry out its multiple functions, particularly those related to external control of the national procurement system. (See Section 1.2.3 of Chapter II of this report)

c) Ensure that each public sector entity has an operational internal audit control unit to manage public works, supply, and consulting contracts.

(See Section 1.2.3 of Chapter II of this report)

d) Ensure that the internal control units in each public sector entity apply the Internal Audit General Standards issued by and verify that Specific Internal Control Standards have been issed, based on the Internal Audit General Standards and other provisions regarding their operation issued by the Superior Court of Accounts. (See Section 1.2.3 of Chapter II of this report)


Honduras proposes eliminating measure “e”, which appears below in strikethrough, noting as follows:

“This recommendation is unnecessary since this is a legal power of the Court.”

e) Ensure that the Superior Court of Accounts, in exercise of the authority conferred upon it by Article 54(5) of its Organic Law, exercise concurrent oversight and control of the execution and supervision of contracts funded by international donors and lenders, notwithstanding the existence of the fiduciary fence that applies to those funds. (See Section 1.2.3 of Chapter II of this report)


Argentina notes as follows with respect to the following recommendation 1.2.8:

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“With respect to Recommendation 1.2.8.“Adopt the measures necessary to ensure that government institutions use the national procurement system for their procurement operations, rather than being managed under the framework of the United Nations Development Programme (see Chapter II, Section 1.2.3 of this report).”

“A. Does the recommendation refer to those purchases that the government makes with public funds, but that are managed through the United Nations Development Programme (UNDP) authorized by Decree No. 33 of 1995, instead of through the national system?

The Republic of Argentina suggests that in the report these two possible situations –purchases using funds from various sources through the UNDP- should be effectively differentiated both in the recommendations and in the measures suggested by the Secretariat since in the response from Honduras they are not clearly indicated.”

The Secretariat clarifies that recommendation 1.2.8, which appears below in strikethrough, is specifically targeted at any public funds (belonging to Honduras) that might be managed under the UNDP umbrella. With respect to differentiating between the foregoing funds and any that might be provided by external donors who require their funds to be managed by UNDP, the Secretariat proposes that that situation would comprise part of the aforementioned fiduciary fence, and would therefore be addressed by recommendation 1.2.7, above.

Honduras proposes eliminating recommendation 1.2.8, which appears below in strikethrough.

1.2.8 Take the steps necessary to ensure that State entities use the national procurement system for their procurement needs, as opposed to having their procurements managed under the umbrella of the United Nations Development Program. (See Section 1.2.3 of Chapter II of this report)

1.2.9. Carry out periodic evaluations which allow measurement of the use and effectiveness of the national procurement system, and based on those results, define and consider the adoption of specific measures which ensure transparency, publicity, equity and efficiency of the system. (See Section 1.2.3 of Chapter II of this report)

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

The Republic of Honduras 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 light of the comments made in the above-noted section, the Committee suggests that the Republic of Honduras consider the following recommendations:


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The United States suggests deletion of the text which appears in strikethrough in recommendation 2.1 and the insertion of the text which appears in bold and underlined, as well as the deletion of the text that appears in strikethrough in measures “a”, “b”, “c”, and “d”, below,.

Argentina proposes deletion of the words “Bearing in mind the existing legal initiative, and in this regard, notes as follows:

“The mention of the “existing legal initiative” should perhaps not be part of the heading of the recommendation, but rather one of the recommended measures, urging the Congress to pass it, with any suitable improvements recommended by the Technical Secretariat. Otherwise, all the subsequent measures would be exclusively related to that proposed law. Point 2.1. could then begin with: “Consider creating...”.”

2.1. Bearing in mind the existing legal initiative, cConsider the creation and strengthening of systems for protecting public servants and private citizens who in good faith report acts of corruption, through the adoption of legal provisions specifically for their protection. (See Section 2.2 of Chapter II of this report) To comply with this recommendation, the Republic of Honduras could take the following measures mechanisms into account:


Honduras suggests replacing the words “that is suggested” in measures “a”, with the word “recommended”, which is in bold underlined italics. In addition, with respect to this measure, Honduras makes the following observation:

“The Superior Court of Accounts’ treatment of reports filed by citizens provides for anonymous filings and the use of simplified forms.”

In addition, Honduras suggests replacing the words “that is suggested” in measures “b”, “c”, and “d”, below, with the word “aforementioned”, which is in bold underlined italics.

a) Include, in the recommended legal instrument that is suggested, the possibility of aAnonymous reporting of acts of corruption, the protection of the reporters’ identity, and the use of simplified formats or electronic means which facilitate reporting. (See Section 2.2 of Chapter II of this report)

b) Include, in the aforementioned legal instrument that is suggested, mechanisms for rReporting threats or reprisals that both public servants and private citizens may face as a result of reporting, which ensure, among other aspects, the public servant’s employment security, particularly when the report alleges actions that may involve the individuals’ colleagues or hierarchical superiors. (See Section 2.2 of Chapter II of this report)

c) Include, in the aforementioned legal instrument that is suggested, mechanisms for the pProtection of witnesses, which offer the same guarantees both for public servants and private citizens. (See Section 2.2 of Chapter II of this report)

d) Include, in the aforementioned legal instrument that is suggested, mechanisms that fFacilitat e ion of international cooperation with respect to the above areas, when appropriate. (See Section 2.2 of Chapter II of this report)

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Honduras proposes deletion of the words, “as well as ensuring” and the insertion of the words which appear in bold and underlined in recommendation 2.2., below.

2.2. Ensure that the necessary bodies are either created or assigned the task of receiving and responding to requests for protection. In addition, reasonably ensure as well as ensuring the provision of the necessary measures of protection recommended, and pursuant to the financial position of the country; and ensure that they have that they be provided with the necessary resources and personnel to carry out their functions. (See Section 2.2 of Chapter II of this report)

3. ACTS OF CORRUPTION (ARTICLE VI(1) OF THE CONVENTION)

The Republic of Honduras has adopted measures intended to criminalize the acts of corruption provided for by Article V(1) of the Convention, as discussed in Section 3 of Chapter II of this report.


The United States makes the following comment with respect to this section:

“We recommend that the Government of Honduras specify two forms of abuse of official position more clearly. We suggest that the Government of Honduras consider the utility of an employee protection within the public corruption Article 369 to prevent abuses of official position:

> Any civil servant by availing himself of the powers invested by his position or any other situation derived from his personal or hierarchical relationship who influences, coerces, or requires that another civil servant perform political or otherwise non-duty activities, to the benefit of another person, or entity.

> Any civil servant by availing himself of the powers invested by his position or any other situation derived from his personal or hierarchical relationship who influences, coerces, or requires that any individual perform political or otherwise non-duty activities, to the benefit of another person, or entity.”


“We will accept this only if the recommendations in question correspond to the elements set out for the acts of corruption described in Article VI of the Convention.”

In addition, the United States suggests the inclusion of the text that appears in bold and underlined in recommendations 3.1, and the deletion of the text that appears in strikethrough in recommendation 3.1 as well as measures “a” and “b”, below.

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

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3.1. Modify Articles 361 and 362 of the Criminal Code, so as to more fully reflect the elements contained in Article V(1)(a) of the Convention. , by incorporating thereto the text that appears in bold and italics, as follows:


Honduras proposes replacing the references to public “officials” or “employees” with the word “servants”, as noted in bold and underlined in measures “a” and “b”, below.

a) Article 361. Any public servant official, employee or a person who performs public functions, who solicits, receives or accepts, either on his own or through third parties, handouts, gifts, favors, offers, promises or any other undue advantage for himself or another person or entity, in exchange for performing any act that violates his or her duties and constitutes a crime shall be punished with imprisonment for a period of five (5) to seven (7) years, plus absolute disqualification from public office for double the period of his or her incarceration, separate and apart from the penalty incurred by reason of the crime committed in exchange for the handout or promise. (See Section 3 in Chapter II of this report)

b) Article 362. Any public servant official, employee or a person who performs public functions, who directly or indirectly solicits, receives or accepts handouts, gifts, favors, offers, promises or any other undue advantage for himself or another person or entity, to perform an unjust but not criminal act relative to his or her office shall face imprisonment for a period of two (2) to five (5) years. If the act is never consummated, then the defendant shall receive a sentence of one (1) to three (3) years. In either case, the official shall be disqualified from public office for double the period of his or her incarceration. (See Section 3 in Chapter II of this report)

3.2. Implement provisions which criminalize the solicitation or acceptance of a bribe in exchange for any act in the performance of public functions, without the need for the act itself to be illicit or unjust, pursuant to Article VI(1)(a) of the Convention. (See Section 3 of Chapter II of this report)

3.3. Implement provisions which specifically criminalize and sanction particular acts or omissions by public officials or employees with respect to their functions, committed with the purpose of illicitly obtaining benefits for themselves or another, as required by Article VI(1)(c) of the Convention. (See Section 3 of Chapter II of this report)

3.4. Implement provisions which criminalize the fraudulent use or concealment of property derived from any of the acts referred to in Article V(1) of the Convention. (See Section 3 of Chapter II of this report)

3.5. Criminalize the attempted commission of any of the corruption offenses referred to in Article V(1) of the Convention, as required by Article V(1)(e) thereof. (See Section 3 of Chapter II of this report)

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3.6. Revise Article 366 of the Criminal Code, in order to specifically criminalize those who act as accessories after the fact with respect to corruption offenses, as required by Article V(1)(e) of the Convention. (See Section 3 of Chapter II of this report)

3.7. Specifically criminalize assisting, instigating, or serving as an accessory after the fact, in the commission or attempted commission of the solicitation or acceptance of bribes, as required by Article V(1)(e) of the Convention. (See Section 3 of Chapter II of this report)

3.8. Criminalize collaborations or conspiracies to commit any of the corruption offences referred to in Article V(1) of the Convention, as required by Article V(1)(e) thereof, in accordance with the principles of the domestic legal framework. (See Section 3 of Chapter II of this report)

4. GENERAL RECOMMENDATIONS

Based on the review and comments made throughout this report, the Committee suggests that the Republic of Honduras consider the following recommendations:


Honduras notes as follows with respect to general recommendation 4.1, below:

“We cannot find this recommendation in the general structure of the Report as regards its general principle.”

4.1 Design and implement, when appropriate, training programs for public servants responsible for implementing the systems, provisions, measures, and mechanisms considered in this report, for the purpose of ensuring that they are adequately known, 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, provisions, measures, and mechanisms considered in this report, and to verify follow-up on the recommendations made herein.

5. FOLLOW-UP

The Committee will consider the periodic update Reports submitted by the Republic of Honduras 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.

IV. OBSERVATIONS IN RELATION TO THE PROGRESS IN THE IMPLEMENTATION OF THE RECOMMENDATIONS FORMULATED IN THE REPORT FROM THE FIRST ROUND

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The Committee offers the following observations with respect to the implementation of the recommendations made to the Republic of Honduras in the report from the First Round of review, based on the information available to it:


The United States makes the following comment with respect to Chapter IV:

“Secretariat – this report, as originally written, was not sufficient for us to be able to assess the progress made by the country under review in implementing the recommendations. We are suggesting a change in format, where specific measures taken are noted after each recommendation – see note below for recommendations to give you an idea of information that should be included.”


“We believe the Secretariat is clear in detailing progress with implementation of the recommendations; nevertheless, we will accept the suggested change, provided that it does not affect the content of replies given in the questionnaire and that the change in format is applied equally to the other countries undergoing analysis”

With respect to this Chapter, Argentina notes as follows:

“In general terms, our opinion is that a specific format should be discussed and approved for presenting the information on progress made in implementing recommendations from earlier rounds, whether in a Report Annex or, as appropriate, as a separate document. In this respect, the Republic of Argentina could provide a draft form for distribution and discussion with all the distinguished experts that make up the MESICIC. Preparation of that proposal would take into account the structure of the questionnaire sent to the States at the beginning of this Second Round of Analysis.

In line with this reasoning, and referring specifically to the Draft Preliminary Report on the Republic of Honduras, we note that Section IV (“OBSERVATIONS REGARDING PROGRESS MADE IN IMPLEMENTING THE RECOMMENDATIONS MADE IN THE REPORT FROM THE FIRST ROUND”) emphasizes the measures taken by the country with respect to progress made in implementing the recommendations, and takes notes of the need to continue heeding those recommendations, as well as those from domestic agencies that have participated in their implementation. However, it contains no reference to difficulties encountered in the implementation process.

In order to ensure that all country reports have the same structure and in this way to facilitate the tasks of the Committee and the Secretariat when reviewing and comparing those reports, the delegation from the Republic of Argentina suggests retaining in point IV of the country reports the same items that are found in the questionnaire, so that the scheme would be as follows:

I. RECOMMENDATION: (Transcription of the text of the recommendations and measures suggested by the Committee to your State in the country report and on which you will report regarding progress made):

A) Concrete measures and actions that the State has taken to implement the preceding recommendation. Observations from the Committee.

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B) Potential difficulties seen in the process of implementing the previous recommendation. Observations from the Committee.

C) Internal agencies that have participated in the implementation of the recommendations. Identification of specific needs for technical or other types of assistance relating to the implementation of the previous recommendation. Observations from the Committee.

In addition, in the event that the States under review have failed to report on points A), B) and/or C), this situation should be indicated in the country report, with express mention that it has not been possible to perform an analysis because the country did not report, as it should, on the existence of progress (point A), difficulties (point B) and/or participating agencies (point C). This lack of information could, should the full Committee consider it advisable, lead to some observation in this regard.

The ability to clearly identify point B) of the questionnaire (“difficulties seen”) in the country reports is essential for the Committee, since it allows it to reach a determination regarding the need for assistance and opportunities for cooperation among the countries that make up the MESICIC.

Based on the foregoing, we respectfully suggest that when the Technical Secretariat prepares the revised version of the Draft Preliminary Report – Article 23(f) of the Rules of Procedure – it should consider changing Section IV, “OBSERVATIONS REGARDING PROGRESS MADE IN IMPLEMENTING THE RECOMMENDATIONS MADE IN THE REPORT FROM THE FIRST ROUND” in order to reflect the separate analysis of each of the items mentioned.”

1. STANDARDS OF CONDUCT AND MECHANISMS TO ENFORCE COMPLIANCE (ARTICLE III, PARAGRAPHS 1 AND 2 OF THE CONVENTION)

Recommendation


The United States makes the following additional comment with respect to Chapter IV:

“Per the previous note, please find below a proposed rewrite of the draft analysis for follow-up to the recommendations in parts 1,2,3,4 and 7 for the Republic of Honduras. We have changed the format by not restating each measure. Instead, we have noted in lead-in language whether the country responded to each measure for consideration and whether they provided information on other steps taken. This should help streamline the follow-up reports. We have also eliminated any reference to having "successfully" completed a specific individual measure. The country needs to focus on the recommendation not the measure.”


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“In the recommendations served on our country, it was suggested that in order to comply with them, consideration be given to specific measures; thus, the ordering of observance of those measures means that the recommendations were duly addressed by the relevant authorities.”

1.1 Strengthen the implementation of laws and regulatory systems related to conflicts of interest.

In its response the Republic of Honduras presents information that it believes is related to the above recommendation. The information was presented in a format that responded to each of the measures that the Committee suggested Honduras might consider in meeting the recommendation. Information about other steps taken was not presented. In this regard, the Committee notes, that the Republic of Honduras has

-Developed a Draft Civil Service Code of Conduct, which was presented to Congress on January 26, 2006. The Republic of Honduras states that the draft applies to all civil servants, contains provisions dealing with conflicts of interest and provisions dealing with the return of former public servants to the government and the activities of former officials of one specific commission.

-Established Rules of Procedure on the Integration and Functioning of the Probity and Public Ethics Committee and organized (as of June 30, 2006) 37 Committees within institutions and municipalities.

-Engaged in an increased number of training programs for civil servants on topics such as Principles and Ethical Values, the Rules of Probity and Public Ethics Committees and Institutional Transparency.

The Committee takes note of the progress made in meeting this recommendation, in particular by establishing the Rules of Procedure for the Public Ethics Committees and pursuing the Committee’s establishment. It is also pleased that the training has been increased and believes that Honduras recognizes the importance of training as a continuous measure, particularly with the possibility of a new code of conduct.

The Committee notes, however, that while the steps taken toward adopting a new code of conduct are positive, the information provided by Honduras with regard to the conflict of interest standard that is included in the code of conduct, the scope of the code’s application (civil servants or all public servants), the existence in the code of some general post government conflict of interest standards applicable to former officials’ activities in the private sector (as opposed to restrictions on returning to government) is limited. The Committee looks forward to the adoption of a final code, complemented if necessary by other laws or legal authorities, that will further strengthen conflict of interest standards and their implementation. Consequently, the Committee believes that the Republic of Honduras should continue to give attention to this recommendation.

Recommendation

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1.2 Strengthen the implementation of laws and regulatory systems with respect to the conservation and proper use of public resources.

In its response the Republic of Honduras presents information that it believes is related to the above recommendation. The information was presented in a format that responded to each of the measures that the Committee suggested Honduras might consider in meeting the recommendation. Honduras also provided information on other steps taken not specifically discussed in the Committee’s measures for consideration. In this regard the Committee notes that the Republic of Honduras has

-Issued an Executive Branch Agreement which provides that the internal audits of Public sector institutions shall now be subject to the provisions of the Organic Law of the Court of Audits and various documents of the Court of Audits. In addition to standardized procedures, these documents address the time limits on the appointments of auditors and the standards for dismissal (but do not address merit standards for selecting the auditors). [DO THEY? The evaluators do not have the document that Honduras provided the Secretariat.]

-Developed a new National System for the Control of Public Resources (SINACORP) and through it, has begun a project to Support the Integral Strengthening of the Control of Public Resources (PAFICORP) financed by the Inter-American Development Bank in cooperation with the World Bank, Sweden, Spain and others.

-Implemented a plan for centralized institutions, decentralized institutions and municipalities to use technology in publishing and disseminating information about government procurements ( www.honducompras.gob.hn ) and specifically noted other state institutions which also use technologies for their contracting procedures.

-Implemented more intense training on the subjects of procurement and hiring.

The Committee is pleased with the initial progress made in meeting this recommendation, in particular with the implementation of the pilot project to support the integral strengthening of the control on public resources. The Committee has particular interest in the results of this project as it may provide an excellent example of good practice for the other members of the MESICIC. The Committee is also pleased at the increased use of technology to publish and disseminate information about government procurements. It hopes such systems will eventually extend to all state institutions, not just to those listed and that some evaluation of the effectiveness of the systems is undertaken.

The Committee notes, however, that the training provided to public servants, while admirable, seemed focused upon those responsible for hiring and procurement. All public officials have responsibilities for public resources including the use of their own office facilities, equipment and staff time. While these issues may have been the subject of the general ethics training provided and discussed earlier in 1.1 and the conservation of public resources may in the future be a part of training on the code of conduct when adopted, the Committee believes that appropriate standards and training for all public officials on these issues is also an important part of preserving and properly using public resources. Consequently, the Committee believes that further attention should be given to this recommendation.

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Recommendation

1.3 Strengthen the mechanisms the Republic of Honduras has to require public officials to report to the competent authorities any acts of corruption in the performance of public functions of which they come to learn.

In its response the Republic of Honduras presents information that it believes is related to the above recommendation. The information was presented in a format that responded to each of the measures that the Committee suggested Honduras might consider in meeting the recommendation. One of those measures, the adoption of measure to protect civil servants who report corruption is dealt with more extensively in part II section 2 of this report. Information about other steps was limited to the second measure noted in the first round report. In this regard, the Committee notes that the Republic of Honduras has

-Trained, since the issuance of the first round report, 984 civil servants on their obligation to report and, as a corollary, trained civil society on methods they might use to report corruption.

-Included in the newly adopted Rules on the Integration and Functioning of the Probity and Public Ethics Committees a provision that the Court of Accounts must instruct civil servants on their obligation to inform the Probity and Public Ethics Committee of their institution or the Court of Accounts or any other authority with competence to deal with acts of corruption of which they are aware that are committed in the performance of public functions.

The Committee takes note of the progress made in meeting this recommendation and in the additional steps taken by Honduras to begin the process to ensure that not only civil servants are aware of their obligations to report but also that the public in general is aware of and has an appropriate place to report their suspicions. It is also pleased that training civil servants on their obligation to report has begun and that Honduras recognizes this training must be a continuous measure, particularly as more institutions establish their Probity and Public Ethics Committees and civil servants become aware of their role in receiving reports.

The Committee believes that the manner in which Honduras addresses the issue of protecting public servants who report acts of corruption is and will be more fully addressed in the report for this round rather than as a follow-up to the report on the first round, although it notes that Honduras has already taken some steps to implement this measure. Therefore, the Committee believes the Republic of Honduras should provide further attention to the implementation of this recommendation.

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Recommendation

2.1 Strengthen the systems for the disclosure of income, assets and liabilities.

In its response, the Republic of Honduras presents information that it deems related to the above recommendation. The information was presented in a format that responded to each of the measures that the Committee suggested Honduras might consider in meeting the recommendation. The Committee observes that the Republic of Honduras has in its response:

-Stated that it had delivered a list to the Anticorruption Council of all officials who must submit a sworn statement and has not yet done so. The response did not include information on whether the list was publicly available. Additionally, the Committee notes that there was no information provided that the Republic of Honduras’ took any steps toward developing or considered developing systems to make the statements of income, assets and liabilities publicly available, where appropriate, as expressly stated in the Convention.

-Stated it was developing a workshop on conflicts of interest but the response did not provide information how the workshop would be linked to the statements of income, assets and liabilities or who would be able or required to attend. The response does indicate that Honduras has continued to provide Functional Awareness and Income Statement training to approximately 2000 civil servants since 2004.

-Stated that the form for the Sworn Statements of Income, Assets and Liabilities requests information that would be helpful in detecting conflicts of interest. There was no indication, however, that those required to review and analyze the statements had received training on how to review for and then counsel filers on conflicts of interest.

-Indicated that it hopes to obtain funding from the World Bank Institute for technical assistance to establish the Automated System for Sworn Statements of Income, Assets and Liabilities in the last semester of 2006. The Committee notes that the proposed scope of the initial stage of this project will include diagnosing the information technology needed to automate the Sworn Statements of Income, Assets and Liabilities.

-Stated that it has initiated DECLARNET, an automated system which will make it easy to identify those individuals who have submitted their sworn statement of income, assets and liabilities and those who have failed to do so. The Committee notes that the technical assistance initiative mentioned previously also includes developing a [permanent universe] of people who must submit sworn statements of income, assets and liabilities. [Does this mean developing a complete list of positions whose occupants must file?]

The Committee believes the steps taken constitute a step toward strengthening the systems for disclosure of assets, income and liabilities. However, as these initiatives are in the formative stages, the Committee encourages the Republic of Honduras to continue its efforts to strengthen its financial disclosure system.

Recommendation

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3. The Committee suggests that the Republic of Honduras consider strengthening the oversight bodies in terms of their functions in relation to the provisions of Article III, paragraphs 1, 2, 4, 11 of the Convention in order to ensure the effectiveness of such control, endowing them with the resources needed for the thorough performance of their functions; ensuring that they have greater political and social support; and establishing mechanisms that allow for the institutional coordination of their actions, and their continuous evaluation and monitoring.

In its response the Republic of Honduras presents information that it believes is related to the above recommendation and indicated that current economic difficulties have limited Honduras’ ability to implement this recommendation. Bearing this in mind, the Committee notes, that the Republic of Honduras has

-Approved the creation of the Fund for Municipal Transparency, a percentage of which is targeted for municipalities to finance audits and training, although there are no oversight bodies identified to use this fund. -Created mechanisms for information exchange and coordination between the Court of Accounts and other oversight such as the Public Prosecutions Service, the Attorney General’s Office, the National Banking and Insurance Commission and the National Anti-Corruption Council, in order to avoid duplicating efforts.

The Committee takes note of the progress made in meeting this recommendation, in particular through the agreements among already existing oversight bodies to enhance cooperation. The Committee looks forward to information on the effectiveness of the actual implementation of these agreements.

The Committee recognizes and appreciates the Republic of Honduras’s candor in discussing the financial limitations that have affected its ability to pursue this recommendation. However, the Committee urges the Republic of Honduras to continue its efforts to strengthen the oversight bodies generally, and to establish specific mechanisms to address evaluation and monitoring of these oversight bodies.

Recommendation

4.2. Implement laws which support access to public information.

In its response the Republic of Honduras presents information that it believes is related to the above recommendation. The information was presented in a format that responded to each of the measures that the Committee suggested Honduras might consider in meeting the recommendation. In this regard, the Committee notes that on March 18, 2006, the Republic of Honduras adopted the Special Commission of National Congress’ opinion on the Transparency and Access to Information Law. Preceding the adoption of the opinion a series of meetings and consultations were held that included government entities, G-16 member country representatives, the National Anti-Corruption Council, civil society representatives, and private sector representatives. Further, the National Congress sent a commission of deputies to Mexico to observe the Federal Institute of Access to Public Information.

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The Committee notes that Honduras appears to be moving forward toward passage of the Transparency and Access to Information Law. However, the response does not provide information that links the adoption of the opinion directly to this progress nor does the response provide information on the scope and authority of the opinion and how it will be implemented.

In its response, Honduras indicates that training and notification on progress in approving the draft Transparency and Access to Information Law is being conducted by various civil society organizations. Additionally, according to the response, civil society organizations are utilizing technology, such as email, to disseminate information on the status of the law to citizens. The Committee acknowledges civil societies participation in keeping the public informed of the status of approving the law and encourages Honduras to actively participate in and give additional attention to the implementation of the foregoing recommendation.

4.3 Complement existing mechanisms of consultation, establishing procedures, as appropriate, that make it possible to engage in public consultations prior to designing public policies and final approval of legal provisions.

In its response the Republic of Honduras presents information that it believes is related to the above recommendation. The information was presented in a format that responded to each of the measures that the Committee suggested Honduras might consider in meeting the recommendation. In this regard, the Committee notes, that the Republic of Honduras has

-Drafted an amendment to Article 329 of the Constitution of the Republic which is pending approval by the legislature and indicates the intent of the Republic of Honduras to work with Honduran society in designing strategies to attain goals and the methods for achieving them.

-Ratified through Legislative Decree No. 177-2004, a constitutional amendment to Article 5 introducing plebiscite and referendum mechanisms which is still pending approval.

-Continued efforts to develop new mechanisms to facilitate public consultation.

The Committee notes the efforts described by Honduras to implement this recommendation. However, the response does not provide information that describes how the stated amendment and legislative decree will be implemented nor what new mechanisms are being developed to facilitate public consultation. The Committee encourages Honduras to give additional attention to implementing this recommendation.

Recommendation

4.4 Strengthen and continue implementing mechanisms that encourage the civil society and nongovernmental organizations to participate in the public administration, and move to repeal provisions that may discourage that participation.


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-Through the Court of Accounts, set up a Strategic Alliance with the National Anti-corruption Council on January 31, 2006. The Court has also established an Inter-Institutional Framework Agreement with the Permanent Forum of Civil Society Organizations to strengthen and prepare social audits (to involve private citizens in the work of the Court), foster the legal, correct, ethical, honest, efficient and effective management of State resources and assets, encourage the public and private sector to meet their financial obligations and responsibilities vis-a-vis the State.

-Through Decree No. 3-2006, the National Congress approved the Citizen Participation Law intended to promote, regulate and establish the process and mechanisms through which citizens can organize themselves and participate in State entities.

In addition, in its response, the Republic of Honduras states that it recognizes the need to teach public servants and private citizens to use the mechanisms available to participate in public administration, in particular, institutional transparency, complaint procedures, citizen assistance services, participation in public management and advertising campaigns.

The Committee believes the steps taken constitute initial progress toward strengthening and implementing the mechanisms to encourage civil society and non-government organizations to participation in public administration. However, as these initiatives are in the formative stages, the Committee encourages the Republic of Honduras to continue its efforts in implementing this recommendation.

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Recommendation

4.5 Strengthen and continue implementing mechanisms that encourage civil society and nongovernmental organizations to participate in monitoring the public administration


-Increased the number of channels and websites available for citizens to file complaints on public administration.

-Proposed laws on Transparency and Citizen Participation

The Committee notes the preliminary steps taken with regard to implementing the foregoing recommendation and the need for the Republic of Honduras to continue giving attention to implementing mechanisms to encourage civil society and non-government organizations to participate in the monitoring of the public administration.

7. General Recommendations

7.1 Design and implement, as 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 Republic of Honduras presents information that it believes is related to the above recommendation. The Committee notes that the Republic of Honduras has

-Instituted training programs through which the Superior Court of Accounts’ Department of Probity trained over 1,500 civil servants through different workshops, the Department of Public Ethics trained over 1,900 civil servants, and the Directorate of Citizen Participation trained over 3,000 people [are these civil servant and/or the public? who?] between January 2005 and June 2006 on matters related to control by civil society and reports filed by citizens on cases of corruption and fraud.

-Established an agreement with the Universidad Nacional Autónoma de Honduras (UNAH) with funding from the World Bank to provide an intensive course at the higher education level that led to over 100 Court of Accounts’ auditors having been awarded a technical college diploma in auditing.

As a whole, the response of Honduras did not address training programs to be designed and implemented for civil servants in charge of implementing many of the systems, standards, measures and mechanisms mentioned in the report. For example, as noted in Recommendation 2.1, there was no indication that those required to review and analyze the Sworn Statements of Income, Assets and Liabilities had received training on how to review for and then counsel filers on conflicts of interest.

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Given the continuous nature of implementing the recommendation, the Committee urges the Republic of Honduras to continue to give attention to developing training programs for civil servants in order to further strengthen their application of the systems, standards, measures and mechanisms considered in this report.

1.1. Standards of conduct to prevent conflicts of interests and enforcement mechanisms

Recommendation 1.1.

Strengthen the implementation of laws and regulatory systems related to conflicts of interest.

Measures Suggested by the Committee

a. Regulate for all public servants, certain eventualities that could constitute conflicts of interest and which, in view of their importance, should be addressed in a detailed and specific manner, as well as mechanisms that promote compliance with any regulation that is issued. (see section 1.1.2. of chapter II of the report)

What did they do to implement the recommendation?

b. Establish appropriate restrictions for those who cease to hold a public office, such as the prohibition on working on cases in which they were involved by reason of their position or before entities with which they were recently associated.


c. Issue, through the competent authority, the regulation related to the establishment and operation of the Committees of Probity and Public Ethics, as provided for by the pertinent provisions. (see section 1.1.2. of chapter II of the report)


d. Increase the training programs for public servants in relation to the standards of conduct and mechanisms for preventing conflicts of interest

- The Draft Civil Service Code of Conduct, which was presented to Congress on January 26, 2006, and which includes measures, such as restrictions on persons who leave public office.43

- Agreement No. 005/2006, approved by the Superior Court of Accounts on February 28, 2006, and published in the Official Gazette on April 8, 2006, providing the Rules of Procedure on the Integration and Functioning of the Probity and Public Ethics Committee, as suggested in measure “c”, above.44

d. Increase the training programs for public servants in relation to the standards of conduct and mechanisms for preventing conflicts of interest


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- The various seminars that were held in 2005 and 2006, which have been attended by a total of 1,235 civil servants; the establishment of links with local educational authorities, universities and municipalities, aimed at creating a new civic attitude to guarantee the proper use and management of State funds; the 2006 Municipal Training Project, through which representatives from the country’s 298 municipalities have been trained in various subjects, including probity and ethics; and the training that has been coordinated in conjunction with non-governmental organizations.45

In its response, the Republic of Honduras presents information that it deems related 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:

The Committee takes note of the satisfactory consideration of measures (c) and (d) of recommendation 1.1, without prejudice to the fact that measure (d) is of a continuous nature and should continue to be developed.

In addition, the Committee takes note of the steps taken by the country under review to proceed with the implementation of the other measures contemplated by this recommendation, and the need for Honduras to continue giving attention to the implementation of this recommendation.

1.2. Standards of conduct to ensure the proper conservation and use of resources entrusted to government officials in the performance of their functions and enforcement mechanisms

Recommendation 1.2.

Strengthen the implementation of laws and regulatory systems with respect to the conservation and proper use of public resources.


a. Consider the advisability of establishing mechanisms for the selection of the heads and personnel of the internal audit, such as through a merit-based competitive examination process open to the public, governed by pre-established rules and requirements; noting, when appropriate, the duration of the post and establishing the grounds for termination of employment, and requiring consultation with the Superior Court of Accounts before proceeding with terminations, so as to prevent employees from being afraid to perform their duties objectively, as required by law. (see section 1.2.2. of chapter II of the report)


b. Adopt those measures that are considered necessary in order to achieve the effective observance of the Internal Control Standards and the Standards on Internal Audits issued by the Superior Court of Accounts. (see section 1.2.2. of chapter II of the report) What did they do to implement the recommendation?

c. Implement measures aimed at optimizing the use of technology in the area of public contracting, and at ensuring broad publication and dissemination of calls for bids, and greater participation of bidders offering goods and services. What did they do to implement the recommendation?

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d. Increase training programs for public servants, in relation to the standards of conduct and mechanisms for conserving and ensuring the proper use of public resources. What did they do to implement the recommendation?


- Executive Branch Agreement no. 0419, published on June 3, 2005, issuing the Rules on the General Execution of the Organic Budget Law, which according to the response, provides that “the internal audits of Public Sector institutions shall be subject to the provisions of the Organic Law of the Court of Accounts, the Manual on Internal Control Standards and General Auditing Standards, and any standards the Court of Accounts may issue in fulfillment of its attributions.”46

- The design, by the Superior Court of Accounts, of a National System for the Control of Public Resources (SINACORP), under which, a Project to Support the Integral Strengthening of the Control of Public Resources (PAFICORP). The implementation of this project is now under way, and is beginning with an integral review of the internal control regulations and instructions on how the internal audits are to be conducted.47

- The creation of the System of Information on Contracting and Acquisitions of the State of Honduras (www.honducompras.gob.hn).48

- The training provided to Honduras’ 298 municipalities by the Superior Court of Accounts; the 161 hour Diploma course in Procurement and Hiring, managed by ONCAE and targeting officials involved in government procurement, members of the private sector and oversight entities; and the 60 hour Intensive Course in Public Procurement, designed to provide new employees with the knowledge and tools necessary to develop their functions properly.49

The Committee takes note of the steps taken by the country under review to proceed with the implementation of the foregoing recommendation, and the need for Honduras 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

Recommendation 1.3.

Strengthen the mechanisms the Republic of Honduras has to require public officials to report to the competent authorities any acts of corruption in the performance of public functions of which they come to learn.


a. Adopt and implement measures of protection for public servants who report acts of corruption, are protected against threats or reprisals to which they may be subjected as a result of complying with this obligation.

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b. Increase the training programs for public servants, in relation to the responsibility to report to the competent authorities the acts of corruption of which they have knowledge. What did they do to implement the recommendation?


- The strengthening of the units that receive complaints, partly through the system established by the Superior Court of Accounts for the online filing of complaints via the Internet website www.tsc.gob.hn.denuncias.50

- The implementation of Article 2(5) of the Rules of the Integration and Functioning of the Probity and Public Ethics Committees, which requires the Court to “instruct civil servants on their obligation to inform the Probity and Public Ethics Committee of their institution or the Court of Accounts of any other authority with competence to deal with acts of corruption or which they are aware that are committed in the performance of public functions of which they area aware that are committed in the performance of public functions…”51

- The training that has been provided since June 30, 2006, both for civil servants as well as organizations and civil society, as noted in the response to the questionnaire.52


2. SYSTEMS FOR REGISTERING INCOME, ASSETS AND LIABILITITES (ARTICLE III, PARAGRAPH 4 OF THE RECOMMENDATION)

Recommendation 2.

Strengthen the systems for the disclosure of income, assets, and liabilities.


a. Regulate the conditions, procedures and other aspects relating to the public disclosure, as appropriate, of statements of income, assets and liabilities, subject to the fundamental principles of the legal order of the Republic of Honduras.

b. Maximize the use of the systems for analyzing the content of the statements, and adopt the appropriate measures, so that they can also be a useful tool for detecting and preventing conflicts of interest, in addition to using them as a suitable instrument for detecting possible cases of illicit enrichment.

c. Develop the provision contained in Article 56 of the Organic Law of the Superior Court of Accounts, incorporating the use of information technology for submitting the statements, so as to make it easier for declarants to comply with this obligation electronically, and at the

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http://www.tsc.gob.hn.denuncias/

same time the Court could tap the advantages offered by such technology for optimizing performance of its functions in this area.

d. Strengthen the provisions regarding verification of the content of the statements by the Superior Court of Accounts, established in the Regulation of the Organic Law of that Court, such that one can have a system that makes it possible to give impetus to and timely perform such verification.(see section 2.3. of chapter II of the Report).


- The presentation to the National Anti-Corruption Council of a list of all officials who must submit a sworn statement and have not yet done so.53

- The standard form for Sworn Statements of Income, Assets and Liabilities, as well as the preparation for a workshop on “conflicts of interest which will help to determine ethics-related situations and dilemmas connected with public functions. This workshop will have nationwide coverage.”54

- The website www.tsc.gob.hn/declaracionesjuradas.ht, which “contains information on the rules on sworn statements of income, assets and liabilities. Interested parties can download the form, print it out and fill it in. All statements submitted are kept on electronic file.”55

- The use of the DECLARANET system by the Superior Court of Accounts, through which the institution’s human resources unit must submit a statement in electronic format, and which will allow an easy determination of who has complied with the obligation to file.56

- The financial cooperation that has been obtained from the World Bank to support the establishment of an Automated System for Sworn Statements of Income, Assets and Liabilities.57


3. OVERSIGHT BODIES FOR THE SELECTED PROVISIONS (ARTICLE III, PARAGRAPHS 1, 2, 4 AND 11 OF THE CONVENTION)

Recommendation 3.

In view of the comments made in that section, the Committee suggests that the Republic of Honduras consider strengthening the oversight bodies in terms of their functions in relation to the provisions of Article III, paragraphs 1, 2, 4, and 11 of the Convention in order to ensure the effectiveness of such control, endowing them with the resources needed for the thorough performance of their functions; ensuring that they have greater political and social support; and establishing mechanisms that allow for the institutional coordination of their actions, and their continuous evaluation and monitoring.

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http://www.tsc.gob.hn/declaracionesjuradas.ht


- The approval by the National Congress of the creation of the Fund for Municipal Transparency.58

- The mechanisms established by the Superior Court of Accounts, which enable information to be coordinated and exchanged with other oversight bodies, and the cooperation agreements entered into by the Court with other government entities for this purpose.59

The Committee takes note of the steps taken by the country under review to proceed with the implementation of the foregoing recommendation, and the need for Honduras to continue giving attention to the implementation of this recommendation. In addition, the Committee takes note of the difficulties faced by the Republic of Honduras with respect to the implementation of this recommendation.60

4. MECHANISMS TO PROMOTE THE PARTICIPATION BY CIVIL SOCIETY AND NONGOVERNMENTAL ORGANIZATIONS IN EFFORTS TO PREVENT CORRUPTION (ARTICLE III, PARAGRAPH 11 OF THE CONVENTION)

4.2. Mechanisms for access to information

Recommendation 4.2.

Implement laws which support access to public information.


a. Develop and regulate processes for receiving requests, for answering them in timely fashion, for appeal in case such requests are denied, and that establish sanctions in those cases in which there is a failure to provide information.

b. Implement training and dissemination programs on the mechanisms for access to information, so as to facilitate their understanding by public servants and citizens, and to optimize the use of the technology available to that end.

c. Develop legal provisions that make the information and documentation related to the management of public sector organs and entities available to the public, not including those exceptions established by the legal system, establishing the right of access to the records of those organs and entities, and to obtain copies of the administrative documents and files, pursuant to the limitations established in the national legislation.


- The presentation, by the Special Commission of National Congress, of its draft opinion on the Transparency and Access to Information Law, as well as the subsequent adoption of that draft opinion.61

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In addition, with respect to the implementation of this recommendation, ACI-PARTICIPA notes that “A strong effort is necessary to educate citizens with respect to facilitating access to public information demanded by citizens, and for citizens to respond to the consultations made by civil society or public organizations, in the study of public interest.”62

The Committee takes note of the need for the country under review to give additional attention to the implementation of the foregoing recommendation.

4.3. Mechanisms for consultation

Recommendation 4.3.

Complement existing mechanisms of consultation, establishing procedures, as appropriate, that make it possible to engage in public consultations prior to designing public policies and final approval of legal provisions.


a. Continue establishing procedures, when appropriate, for allowing the consultation of interested sectors of civil society and nongovernmental organizations in relation to the design of public policies and the preparation of proposed laws, decrees, or resolutions within the scope of the Executive branch.

b. Hold public hearings or develop other suitable mechanisms that permit public consultations in other areas in addition to those already considered, when appropriate.

c. Adopt, in accordance with its legal order and through the competent authority, the measures required so that the plebiscite and referendum mechanisms, introduced in the amendment to Article 5 of the Constitution, may be made available to citizens for their use, in the event that the amendment is ratified. At the same time, the Committee considers that in order to strengthen the legal institutional system of the country under review, it is advisable that during the amendment, consideration be given to the possibility of regulating the treatment given to these participation mechanisms, the areas or subjects in which they are to be obligatory.

In its response, the Republic of Honduras presents information that it deems related to the above recommendation.63

The Committee takes note of the need for the country under review to give additional attention to the implementation of the foregoing recommendation.

4.4. Mechanisms to encourage participation in public administration

Recommendation 4.4.

Strengthen and continue implementing mechanisms that encourage the civil society and nongovernmental organizations to participate in the public administration, and move to repeal provisions that may discourage that participation.

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a. Establish mechanisms in addition to those that exist, to strengthen the participation of civil society and nongovernmental organizations in the efforts to prevent corruption.

b. Move to repeal the “desacato laws”. (see section 4.4.2. of chapter II of the report).

c. Support, through the Superior Court of Accounts and when appropriate, the establishment of opportunities and mechanisms for citizen participation, in conformity with Article 70 of the Organic Law of the Superior Court of Accounts.

d. Design and implement, when appropriate, programs to disseminate the mechanisms of participation in the follow-up of public administration, and train and provide the tools needed to civil society and nongovernmental organizations to make adequate use of those mechanisms.


- The agreement entered into by the Superior Court of Accounts with the National Anti-Corruption Council for a Strategic Alliance, and the Inter-Institutional Framework Agreement entered into with the Permanent Forum of Civil Society Organizations.64

40 At p. 26.41 See p. 17.42 See the Response of Honduras, at p. 18.43 See the Response of Honduras, at p. 20.44 Ibid.45 According to the response of Honduras at p. 21, these nongovernmental organizations include FOPRIDE, FOSDEH, CIPRODEN and the Salvadoran organization, “Probidad”.46 Ibid, at p. 22.47 Ibid.48 Ibid, at p. 23.49 Ibid.50 Ibid, at p. 25.51 Ibid.52 Ibid.53 Ibid.54 Ibid, at. p. 26.55 Ibid.56 Ibid.57 Ibid.58 Ibid, at p. 27.59 Ibid.60 Ibid.61 Ibid, at p. 28.62 Document submitted by ACI-PARTICIPA as a civil society organization, at p. 26.63 Ibid, at p. 29.

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- Decree No. 3-2006, which “establishes the process and mechanisms through which citizens can organize themselves and participate in State entities, in accordance with the Constitution of the Republic and Honduran legislation.”65

The Committee takes note of the steps taken by the country under review to proceed with the implementation of measures (a) and (c), and the need for those steps to continue.

The Committee also takes note of the need for the country under review to give additional attention to the implementation of measures (b) and (d) of the foregoing recommendation.

4.5. Mechanisms to encourage participation in the follow-up of public administration

Recommendation 4.5.

Strengthen and continue implementing mechanisms that encourage civil society and nongovernmental organizations to participate in monitoring the public administration.


a. Promote ways whereby those who perform public functions may, as appropriate, allow, facilitate, or help civil society and nongovernmental organizations develop activities to monitor their public activities.

b. Design and implement programs to disseminate the mechanisms of participation in the follow-up of public administration, and train and provide the tools needed to civil society and nongovernmental organizations to make adequate use of those mechanisms.


- The increase in “The number of channels and websites available for citizens to file complaints on public administration…”66

- The Law on Transparency and the Law on Citizen Participation, which, once they become law, “will help civil society organizations to evaluate their management.”67


5. ASSISTANCE AND COOPERATION (ARTICLE XIV OF THE CONVENTION)

Recommendation 5.1.

64 Ibid, at p. 30.65 Ibid, at p. 31.66 Ibid, at p. 32.67 Ibid.

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Determine and prioritize specific areas where the Republic of Honduras considers that technical cooperation from other States Parties is required to strengthen their ability to prevent, detect, investigate and punish acts of corruption. The Republic of Honduras must also determine and prioritize requests received for mutual assistance on investigating or trying cases of corruption.

Recommendation 5.2.

Continue with the efforts to exchange technical cooperation with other States Parties on the most effective ways and means of preventing, detecting, investigating and sanctioning acts of corruption.


- Cooperation received from the Superior Court of Accounts, including agreements signed with, inter-alia, the Anti-Corruption Office of the Ministry of Justice of the Republic of Argentina, the Central American Bank for Economic Integration (BCIE) World Bank and the OCCEFS the United States Agency for International Development (USAID) the Spanish Agency for International Cooperation (AECI) the Dutch Agency for International Business and Cooperation, and the Inter-American Development Bank.68

- The signature, by the heads of the Organization of Latin American and Caribbean State Audit Institutions (OLACEFS) within the framework of the International Seminar “Transparency Against Corruption”, of the Declaration of Cartagena de Indias, whereby the region undertakes to fight corruption and use appropriate measures and policies to prevent and punish it as well as mutual assistance and cooperation.69


6. CENTRAL AUTHORITIES (ARTICLE XVIII OF THE CONVENTION

Recommendation 6.

Consider providing the Court of Accounts with the funding it needs to carry out its functions in the appropriate manner, as a central authority of the Convention, and in particular to design and implement an integral dissemination and training program for the appropriate authorities and officials, in order for them to be aware of, and in a position to apply, the provisions for mutual assistance for investigating and trying the acts of corruption provided for in the Convention and in other agreements entered into by the Republic of Honduras.


68 Ibid, at p. 33.69 Ibid.

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- The April 8, 2005 signature, by the Superior Court of Accounts, of an inter-institutional cooperation agreement with ACI-PARTICIPA, which provides for the latter to assist the Court in disseminating and publishing the Convention.70

- As noted in the response, “In the agreement entered into with the Permanent Forum of Civil Society Organizations, the Forum undertook to work with the Court to reproduce, disseminate and impart the anti-corruption instruments of the United Nations System and the Organization of American States and the instruments that are related to oversight by civil society. It also agreed to cooperate with the Court on the work undertaken to implement in the country the recommendations of the Committee of Experts on Implementation of the Inter-American Convention Against Corruption.”71

- The publication of the Organic Law of the Superior Court of Accounts, its Regulation, and the two international anti-corruption Conventions.72


7. GENERAL RECOMMENDATIONS

Recommendation 7.1.

When appropriate, design and implement training programs for the civil servants responsible for the applying systems, standards, ensures and mechanisms considered in this report to ensure they are properly understood, handled and applied.

In its response, the Republic of Honduras presents information that it deems related to the above recommendations. In this regard, the Committee highlights the following steps noted by Honduras and which lead to the conclusion that the recommendation has been satisfactorily considered, such as the following:

- The training provided by the Superior Court of Accounts, through the Department of Probity, of more than 1500 civil servants; by the Department of Public Ethics of more than 1900 civil servants; and by the Directorate of Citizen Participation of more than 3000 people.73

- The agreement entered into with the Universidad Nacional Autonoma de Honduras, funded by the World Bank, pursuant to which more than 100 Superior Court of Account auditors were awarded diplomas after completion of an intensive higher education level course in auditing.74

The Committee takes note of the satisfactory consideration of the foregoing recommendation, without prejudice to the fact that measure because it is of a continuous nature, it should continue to be developed.

70 Ibid.71 Ibid, at p. 34.72 Ibid.73 Ibid.74 Ibid.

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Recommendation 7.2.

Select and develop procedures and indicators, when appropriate, to ascertain that the recommendations made in this report have been followed up and to report to the Committee, through the Technical Secretariat on the progress made. The list of indicators generally applied in the Inter-American system and available for the selection indicated by the State under review, which has been published by the Secretariat of the Committee on the OAS’ website, could be used for that purpose, as well as information obtained from analyzing the mechanisms developed following recommendation 7.3 below.

Recommendation 7.3.

Develop procedures, when appropriate and if they do not yet exist, analyze the mechanisms mentioned in this report, as well as the recommendations contained in it.

The Committee notes that the response of the country under review does not refer to any steps taken with respect to the implementation of the two foregoing recommendations. In light of this fact, the Committee considers that Honduras should give additional attention to their implementation.


The United States proposes replacing the word “application” with the word “enforcement” in end notes 6, 7,8, and 9, below.

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