First Trial Court ruling to file the complaint
Por Eduardo R. Saguier - Sunday, Apr. 15, 2012 at 4:17 AM
saguiere@ssdnet.com.ar

Notice that no criminal action is applicable for the adoption of the aforementioned measures which appear to be duly supported pursuant to the applicable regulations, and no irregular fact whatsoever can be proved. Likewise, there are no reasons to question the legal nature of said decisions.

First Trial Court ruling to file the complaint 497
Judiciary of the Nation

///Buenos Aires, 14th April, 2011.-


HAVING REVIEWED THE RELEVANT PROCEEDINGS:


In order to pass a resolution on this case No. 10152/09, entitled “Agencia Nacional para la Promoción Científica y otros s/Delito de Acción Pública [National Agency for Scientific and Technological Promotion on Public Action Crime],” from the records of this Federal Court No. 8, Court Clerk’s Office No. 15.


AND CONSIDERING:


1.- Whereas these proceedings have been filed based on a report filed in an ordinary court by Mr. Eduardo Ricardo Saguier on June 8th, 2009, against the National Agency for Scientific and Technical Promotion (ANPCyT), for the vicious distribution of Pesos 650 million in subsidies between the years 1997 and 2007. Within the same report, he also accused the authorities of the CONICET, the CONEAU, the Science and Technology Secretariats of National Universities, and the Ethics Committee of the National Ministry of Science and Technology of participating in the allocation of said subsidies (page 1).


Thus, Mr. Saguier appeared to file a deposition with the acting Prosecutor (pages 7/8), ratifying the report and submitting a writing describing the accusation, see pages 5/6. In his deposition, he specifically mentioned that the University Policy Secretariat is in charge of allocating incentives and categorizing researcher teachers from every National University, and that this Secretariat is, in turn, supervised by the Agency. He added that all national universities have Science and Technology Secretariats that control the settlement of accounts of researchers who are granted subsidies and that these Secretariats would have also received subsidies, at least the ones mentioned in his writing.
He also said that the CONEAU (National Commission of University Evaluation and Accreditation) is the entity that should certify Master’s and PhD programs, and is made up mostly of teachers-researchers who receive incentives and subsidies from the Agency; and that two members of its Board have also received subsidies from the Agency. In turn, he mentioned that, within the lower structure of the Agency itself, there are fifty coordinators who received subsidies from the entity, when they are the ones who determine the experts that will evaluate each project submitted. Moreover, he mentioned that the Science and Technical Ethics Committee of the Ministry of Science and Technology issued an opinion, upon request of the President of the Agency at that time, stating that coordinators have not failed to comply with any provision upon receiving subsidies, clarifying that four members of said committee received, in turn, subsidies themselves. Besides, regarding his case in particular, he mentioned that his biennial reports from 2004 and 2006 had been rejected, stating that, according to article 41 of the CONICET’s professional by-laws, a researcher is disqualified upon rejection of two consecutive reports and that the decisions were made by the members of the History and Anthropology Advisory Committee. He also added that, as from the rejection of the second report, the aforementioned article 41 sets forth the possibility of a “discussion” between the applicant and a committee appointed to that end, and he said that he then objected the entire committee because its members were from different fields, they were not peers or had lower rank positions, and because they were also recipients of subsidies from the Agency, which was no assurance of fairness, equity or rationality, considering that he has been reporting the entire incompatibility system in subsidy granting. He added that the head of the Agency granted subsidies to advisors and directors from the CONICET and, the CONICET’s Board appointed subsidy recipients as evaluators in advisory committees, and that this influence peddling network has been used against him to willfully exclude him from his researcher career. Finally, he requested to be considered as accuser.


In connection with the writing submitted along with his deposition, it can be clearly determined that the members of each reported agency have been irregularly granted subsidies and he added details to the arguments stated in his deposition.


On pages 15/16, the Honorable Judge of the First Trial Criminal Court No. 8 resolved to decline jurisdiction on the matter, sending the case to the Federal Court of Appeals on Criminal and Correctional Matters in order to appoint the court that would continue dealing with the case. On the other hand, the court rejected Mr. Saguier’s request to be considered as accuser for not complying with provisions set forth in article 83 of the relevant code.



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Judiciary of the Nation




Being the case received by this body, the Prosecutor was served noticed thereof under provisions of article 180 of the Argentine Code of Criminal Procedures, and the CONICET was requested to submit File No. 336/02 – created based on Mr. Saguier’s report, which was finally sent in page 24.


Pages 32/33 include the opinion issued by the Prosecutor, who understood that the criminal action had already been filed for being timely forwarded to the acting Prosecutor’s Office for investigation, ordering further investigation and requesting additional production of proof.


In turn, Eduardo Ricardo Saguier filed on page 36 a new writing requesting to be considered as accuser in the relevant case. It was decided to summon Mr. Saguier to file a new deposition, postponing the decision on his request thereafter. Thus, on page 182, it was decided to deem his request of being considered as accuser applicable, in particular, in connection with alleged acts of retaliation and discrimination against him, being this decision later supplemented by the Court of Appeals in Criminal Matters, which resolved to extend his capacity as accuser to the entire case (page 391).
On page 41, the Ministry of Science, Technology and Productive Innovation sent case file No. 2209/06, whereby the report of the work performed by Dr. Saguier during 2004/2005 is declared unacceptable.


In turn, the relevant area of the CONICET was requested to send the Personal Record of Mr. Saguier, which was finally sent on page 46, and the CONICET’s Legal Affair Department was required to inform on the regulation or provisions that govern subsidy granting. On pages 150/173 the Operating Manual for Fund Allocation and Account Settlement approved by means of Resolution No. 2667/99 was sent. In that connection, the National Agency for Scientific and Technical Promotion also sent, on page 307, the instruments regulating the PICT (Scientific and Technological Research Projects) calls, from the year the entity was created until 2007. Moreover, the AGN, Anti-Corruption Office, the Office of Public Defense and the Prosecutor’s Office of Administrative Investigation were requested to inform on the current status of the proceedings filed due to Mr. Saguier’s report on possible irregularities in subsidy allocation by the CONICET (page 49).


This way, the National Ombudsman informed on pages 70/73 that Mr. Saguier’s report was served to the Nation’s General Auditor, sending, on pages 74/149 copies of the proceedings, whereby it can be seen that, upon becoming aware that the Appeal filed by Mr. Saguier against the resolution issued by the CONICET was pending, it was deemed applicable to suspend the intervention of the Ombudsman. It was finally resolved to conclude the proceedings, considering that the interested parties had been counseled and the problems stated had been dealt with, therefore the case was filed.


In turn, the Anti-Corruption Office sent, on page 174, certified copies of Folder No. 8038, along with the reports sent by the Nation’s Auditing Office on said proceedings, and the Prosecutor’s Office of Administrative Investigations sent, on page 176, certified photocopy of File No. 23612/1592, from its records, related to the facts under review. Besides, the Nation’s Auditing Office informed on pages 177/179 that no audits specifically related to the facts reported by Saguier had been conducted, although it was mentioned that subsidies from the FONCyT, especially during the fiscal year 1997, had been audited. In this connection, said Office sent, on pages 188/209, authenticated copies of said report, whereby it can be seen that general remarks were made, such as: that, due to failure to develop a satisfactory management information system it was not possible to perform a correct evaluation of the Agency’s mechanism; that the FONTAR, FONCyT, UCGAL and UFFA do not have Procedure Manuals in place or a formal organization chart approved; or that the Agency does not have a standardized methodology to audit projects. Thus, certain recommendations were later submitted regarding the detailed facts, but nothing was mentioned about any situation that may be related to the alleged vicious distribution of subsidies reported.



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Judiciary of the Nation

Likewise, the Nation's Auditing Office sent on pages 214/291 certified copies of File No. 84/1005-SG-OMESyA, created due to a filing made by Eduardo R. Saguier regarding alleged irregularities in the CONICET. Based on the proceedings, it can be seen that the issues stated in said filing exceed the scope of the SIGEN, pursuant to Law 24156, as well as the entity’s verification possibilities within its legally assigned powers, and, consequently, specific audits or filings were not performed in connection thereto, other than the work performed at the CONICET, which results in the preparation of different Internal Control System Evaluation Reports issued every year.


Besides, the CONICET sent on page 305 copy of file No. 3987/04, whereby Eduardo R. Saguier’s report for the work conducted in the years 2002/2003 was not accepted.


Following next, on pages 293/295, the ANPCyT was requested to send several files related to the granting of subsidies mentioned by Saguier as irregular. This was answered on pages 319/338, sending the requested documentation and explaining the operation framework those records fall within. So, as to the Scientific and Technology Project Evaluation System (SEPCyT), it was explained that it intends to evaluate the quality, applicability and merit of projects. As regards the quality, it is determined by specialists, called peers, who are chosen, based on their knowledge in the field, by the Coordinator Committee of each of the seventeen scientific and technology areas. One or a few projects from the same call are evaluated and the identity of the peer remains anonymous.


Regarding the applicability, its evaluation is in charge of ad-hoc committees. The guidelines to be considered to analyze projects are disclosed to the authors upon making the call. Members of the ad-hoc committee should have a broad vision of the research field and they should be aware of the priorities, in order to set an order of merits for projects previously approved in terms of quality.


After that, the CONICET sent certified copy of file No. 3642/04, whereby the report made by Eduardo R. Saguier, for the years 2001/2002, was accepted. In turn, the Prosecutor’s Office of Administrative Investigations sent, on pages 418/425, copy of the report resulting from file No. 23612/1592, which states that in 59.25% of evaluated cases, an area coordinator or joint coordinator submitted a project as project leader or member researcher, to receive the subsidy, and those very same coordinators were in charge of selecting project evaluators. It was stated that the procedures applied upon a conflict of interests are not clear or accurate; notwithstanding the above, it was marked that this is because the Agency does not have a formal procedure set for these cases, there being no control mechanisms necessary to provide the process with the required transparency, finally stating that specific situations justifying the filing of a disciplinary action could not be found. Finally, certified copy of the case file was sent to the Honorable National Congress to assess the applicability of inserting the control mechanisms for such situations where conflicts of interests occur in the laws regulating the Agency’s operation;


Moreover, on page 431, the SGPCyT [ANPCyT] was requested to send all the rules governing the activity of said body and determining its powers to manage and allocate subsidies, as well as a specific report on current incompatibilities to become a subsidy recipient. This request was answered on page 436, stating that this body’s activity and powers are regulated by Decrees No. 1660/96 and 289/98 informing, in connection with the procedures and incompatibilities to become a subsidy recipient, that the institution makes public calls, including in each call general specifications the guidelines, terms and condition to become a subsidy recipient.


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Judiciary of the Nation

Then, Lic. Carlos Cassanello, Director of the Scientific and Technology Research Fund (FONCyT) was summoned to file a deposition, appearing on December 2nd, 2010. His deposition is included on page 448. He said that there is no general rule whatsoever, apart from those included in each public call, setting incompatibilities to become a recipient of subsidies granted by the National Agency for Scientific and Technological Promotion. Then, being asked to explain the scope of the provision included in the “Project Submission” section of the “2002 Specifications of the Call to Submit Scientific and Technological Research Projects,” whereby it is stated that authorities from the SeCyT, the ANPCyT, evaluation system coordinators and members of the FONCyT could submit projects, he explained that, until 2000, each Area had only one coordinator and, up to then, they did not submit projects because it was understood, in spite of not being directly banned by any regulation, that it was not correct, due to the fact that they would have to evaluate their own project, for being the only coordinators in their areas. This regulation was expressly included in the 2002 call, when it was stated that evaluation system coordinators could not submit projects. Then, in year 2003, the number of coordinators increased to three people in each area so the abovementioned prohibition was deemed unnecessary, and it was not included in the following calls. On the other hand, he explained that, regardless of the provision included in the 2002 call, he considers that researchers who submit projects as project leaders and that work as area coordinators, probably belong to the group of people who took office in 2003, so, upon submitting their projects, up to the end of 2002, the relevant prohibition was probably not in place. He said that this would probably be true in all cases, suggesting confirmation thereof by the Agency’s authorities, and that in case some coordinators had taken office before 2003, project submission should not have been accepted, but it would definitely be an isolated case because most of the relevant coordinators were appointed in 2003. He also mentioned that the country has a small scientific community so it is very difficult for members of entities such as the Agency and its different areas not to act as active researches as well. He stated that coordinators tend to be well-known persons so it is important to have them in the Agency but it is very difficult to prevent them from conducting their subsidized research projects while working for the Agency, and that was precisely one of the reasons why the number of members in each area was increased, in order to enable them to carry out their research projects while performing their offices in the Agency. Finally, as to the provision included in the 2004 call, he said that area coordinators are no longer included so there would be no problem whatsoever with the submissions made by persons acting in said capacity, but the prohibition is only targeted at SECyT, ANPCyT’s authorities and members of the FONCyT, explaining that it refers to people who hold executive positions in said entities, as well as members of the FONCyT.


Based on the witness’ deposition, the Chairman of the ANPCyT was requested to inform if Gustavo Politis, Roberto Salvarezza, Ricardo Astini, Beatriz Coria, Hermenegildo Ceccatto, Luis Beccaria, Marcelo Frías, Juan Santos and Roberto Lecuona, who turn to be the coordinators that, according to Saguier’s, would have received subsidies for projects submitted in the above mentioned 2002 call, have effectively acted as area coordinators of the Agency; and if so, to state the term each of them held said position.


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Judiciary of the Nation

Thus, the mentioned entity answered the request on pages 453/454, sending a list of the terms during which the aforementioned persons worked as coordinators. It was noticed that the only one who held said position in 2002 was Hermenegildo Ceccatto. Likewise, the terms over which this person held the relevant position were informed on pages 455/473, and it was noticed that, by means of resolution No. 68/02, the Open Bidding Process for the Selection of a Fund Administrator No. 1/02 for the FONCyT coordinator system for years 2002 and 2003 was awarded to Ubatec S.A., and therefore, the Agency entered into a contract with the latter. The contract stated that the company was responsible for managing the Coordinator system, having to execute service agreements with those persons appointed by the Agency, who are included in an exhibit attached to the resolution, including Mr. Ceccatto.


After that, the ANPCyT was requested to inform if, based on the aforementioned resolution, Ubatec S.A. effectively hired Hermenegildo Ceccatto to act as coordinator, and to indicate the exact term he was appointed for. Said requirement was answered on pages 484/495, attaching copy of the contracts executed between Ubatec S.A. and Mr. Ceccatto, whereby the latter was engaged to deliver services as coordinator for the terms between March 1st, 2002 and December 31st, 2002 and March 1st, 2003 and December 31st, 2003.


II.- At this point, and after thoroughly reviewing this case, I understand that it cannot be stated, based on the proceedings filed up to now, that a crime has been committed; therefore it is applicable to close these proceedings by virtue of the arguments stated herein below.


Firstly, note that, within the scope of this process, the undersigned is responsible only for analyzing the legal nature of the acts performed by the Administration, specifically, subsidy granting, for the purpose of determining if a crime has been committed in connection therewith. Against this background, we should deeply analyze the regulation applicable to subsidy granting, in order to determine if allocation of said benefits to the different aforementioned officials, reported by Mr. Saguier, breaches any legal provision or not.


Note that, the different measures filed herein could not prove, in any form whatsoever, the vicious distribution of subsidies mentioned by the reporter since it could not be proved if subsidy granting to the above mentioned people fails to comply with any provision or regulation whatsoever. It has become clear that benefit allocation did not breach, under any circumstance, the mentioned legal principle, but, on the contrary, subsidies were granted observing the regulations in place and as per the conditions set forth therein.


The AGPCyT [ANPCyT] timely informed the different regulations governing its activity –Decrees No. 1660/96 and 289/98- clarifying that, as to the procedures and incompatibilities to become a subsidy recipient, the institution performs public calls setting the guidelines and requirements to become a recipient in each call specifications. This is supported by the provision included in Section 12, Decree 1660/96, whereby the Agency was created, that sets forth that the Fund for Scientific and Technological Research, one of the three areas that make up that entity, will set, in the call, the characteristics, terms and conditions the groups submitting projects should comply with. Lic. Carlos Casanello, director of the FONCyT, stated that there is no generic rule, apart from those contained in the above mentioned public calls, setting incompatibilities to become a subsidy recipient.


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Judiciary of the Nation

This way, the specifications of the different PICT (Scientific and Technology Research Projects) calls, from the creation of the entity until 2007, were reviewed and sent on page 307. The specifications revealed that only the 2002 and 2004 calls included provisions whereby project submission by some official was not allowed. Specifically, the 2002 calls stated that SECyT and ANPCyT’s authorities, the evaluation system coordinators and member from the FONCyT could not submit projects, while the 2004 calls set forth that SECyT and ANPCyT’s authorities and members from the FONCyT could not submit projects.


For clarification of the scope of said provisions, Lic Carlos Casanello was summoned to file a deposition, and he explained that, until 2002, each area had only one coordinator so, in general, they did not submit projects to receive subsidies, even though there was no specific rule to the contrary and that said prohibition was expressly included in the 2002 call, when it was set that the evaluation system coordinators and the authorities of the mentioned entities could not submit projects. He added that in 2003, the number of coordinators was extended to three people per area, so the relevant prohibition was no longer considered, and it was not included in the following calls. He stated that researchers who appear as project leaders in the 2002 call and that work as area coordinators probably belong to the group of people who took office in 2003, so, upon submitting their projects -up until the end of 2002- the relevant prohibition would not have probably been in place.


So based on the proceeding attached to the file and the different case files timely sent by the Agency where it would appear that some of the coordinators, reported by Mr. Saguier, would have received subsidies from the Agency by virtue of projects submitted in the 2002 call, namely, Gustavo Politis, Roberto Salvarezza, Ricardo Astini, Beatriz Coria, Hermenegildo Ceccatto, Luis Beccaria, Marcelo Frías, Juan Santos and Roberto Lecuona, it was requested to inform if they had effectively performed as Agency coordinators, as well as their relevant term.


Having timely answered said request on pages 453/473 and 484/495, it was clearly stated that the only person who acted as coordinator during 2002 was Mr. Hermenegildo Ceccatto, who was appointed for the period between March 1st and December 31st, 2002 and 2003. By virtue of file No. 11-11150, in the Secretariat’s records, relevant to a project submitted in the PICT call 2002 and that had Mr. Ceccatto as project leader, submitted on January 10th, 2003, it can be clearly seen that, at that moment, the prohibition included in the call was not in place, so there is no legal objection to the granting of the relevant subsidy.


Against this background, I understand that it has been clearly stated that no objection whatsoever would be applicable in connection with Mr. Saguier’s claim as to the legal nature of subsidies granted to officials of different institutions since, in most cases, there was no regulation banning or restricting the granting of said benefits to the mentioned officials –who do not fall within the limitations set forth in the PICT 2002 and 2004 calls while, in Mr. Ceccatto’s case, who seems to be the only coordinator that may fall within the restriction of the 2002 call, for having held said position in that year, the prohibition is not applicable either because, upon submitting his project, his 2002 term as coordinator had finished, and his new term for 2003 had not yet begun.


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Judiciary of the Nation

Based on the above, having clearly proved that the subsidies objected by the reporter were granted pursuant to law and did not fail to comply with any regulation whatsoever for there being no general provisions regulating an incompatibility regime and for not having violated those set for specific cases, it can be stated that no crime whatsoever has been committed and that no criminal objection can be filed by the undersigned. This is because, notwithstanding the individual moral or ethics considerations about subsidy granting by those holding the positions mentioned by Saguier in his report -outside the scope hereof, the fact that subsidy granting to said officials is not subject to any prohibition or restriction excludes the possibility of the undersigned to request a value judgment because said decisions have not failed to comply with any legal provision, but rather they had been adopted pursuant to law, without breaching any regulation whatsoever.


Note at this point that the conclusions reached agree on the opinion timely issued, according to Saguier, by the Science and Technical Ethics Committee of the Ministry of Science and Technology, stating that coordinators have not failed to comply with any provision upon receiving subsidies, as well as on the report timely issued by Prosecutor’s Office of Administrative Investigations, which set forth that there are no regulations formally governing the procedure to be followed in case of conflict of interests; hence there is no circumstance whatsoever that would imply a violation of any legal provision that may result in a disciplinary action.


Likewise, the proceedings filed with the Anti-Corruption Office state that the latter reached similar conclusions to those stated herein, arguing that the reported facts would not be typically subsumed into the crime foreseen in article 265 of the Criminal Code; notwithstanding that they might be reviewed as a possible conflict of interests under the terms of Section 13 a, Law 25188 (Law of Public Office Ethics). It was then stated that criminal law is the ultimate precautionary measure that should be sought. It is first applicable to impose administrative sanctions or to improve the institutional mechanisms in place to restrict the unlawful discretional nature or lack of transparent criteria in the allocation of benefits that come from public funds. Consequently it was resolved to forward the proceedings to the Transparency Policy Directorate of this Office, in order to evaluate the mechanisms and practices in place regarding subsidy allocation and, if applicable, to make the relevant recommendations.


In turn, and notwithstanding the fact that, based on the aforementioned arguments, it has been proved that it is not possible to criminally accuse a person for the objected subsidy granting as no legal provision was breached, the statements made by Lic. Casanello should also be mentioned. Lic. Casanello explained that the country has a small scientific community so it is very difficult for members of entities, such as the Agency and its different areas, not to act as active researches as well. He further stated that coordinators tend to be well-known persons so it is almost impossible to prevent them from conducting their subsidized research projects while working for the Agency. He said that the above was precisely one of the reasons why the number of members in each area was increased in 2003, in order to enable them to carry out their research projects while performing their offices in the Agency.


Against this background, we should then review the remaining elements of the report filed by Mr. Saguier, who stated that the rejection of his reports in the periods 2002-2003 and 2004-2005 would have been part of the retaliation and discrimination against him, due to the political-scientific opinions made. Note that, based on reviewing the files, no circumstance whatsoever supporting the report could be found, instead, it was noticed that, upon rejecting the relevant reports, the acting officials acted within their powers and under the effective legal provisions; hence there is no circumstance whatsoever to consider there has been some sort of irregularity.


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Judiciary of the Nation

In contrast, the relevant proceedings are based on effective regulations. By making such decision the involved officials did not breach any provision applicable in the subject matter. Rather, they adopted a measure within their powers. The reasons the decisions were based on were timely explained in the opinions issued by the advisory committees. The undersigned has no powers to perform any deeper analysis in connection herewith for exceeding the scope of this court’s power.


Moreover, note that the above is supported by the fact that the undersigned could not confirm any fact to suspect that the acts under review could have been related to the alleged irregular granting of subsidies reported herein so, as mentioned above, said situation has been ruled out. Along this line, the truthfulness of Mr. Saguier's sayings that his reports were rejected as part of retaliation for the ongoing disclosure of an alleged crime committed by the relevant officials cannot be confirmed as there is no proof of the effective commission of the relevant facts.


Notice that no criminal action is applicable for the adoption of the aforementioned measures which appear to be duly supported pursuant to the applicable regulations, and no irregular fact whatsoever can be proved. Likewise, there are no reasons to question the legal nature of said decisions. The administrative appeals foreseen by the very same administrative procedure seem to be the means to state any disagreement or difference in interpretation of the reporter.


Now therefore, based on the previous analysis and in the absence of confirmation of the commission of a crime and having completed these proceedings, I understand that the resolution set forth in Article 195 of the relevant code should be adopted.


By virtue of the stated reasons and arguments:
I HEREBY RESOLVE:
TO FILE this case file No. 10152/09, entitled “Agencia Nacional para la Promoción Científica y otros s/Delito de Acción Pública [National Agency for Scientific and Technological Promotion on Public Action Crime],” pending before this Court Clerk’s Office No. 15., as there is no commission of any crime whatsoever, pursuant to Article 195 of the Argentine Code of Criminal Procedures.
Serve notice hereof to the Prosecutor by means of the Court Clerk’s Office, to the accuser by means of an official notice to be served within one day, avail of the relevant documentation through the Court Clerk’s Office and file.

Before me: Marcelo Martínez de Georgi


Criminal Judge
The official notice was served on the same date. I attest.-

On the 19th day of this month I served notice to the Prosecutor. I attest.

Patricio B. Evers
Federal Prosecutor

www.er-saguier.org

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