| versión para imprimir - envía este articulo por e-mail |
Federal Court’s Ruling ratifying the file of the complaint
Por Eduardo R. Saguier -
Sunday, Apr. 15, 2012 at 4:23 AM
saguiere@ssdnet.com.ar
it should be noted that the detailed analysis of the events performed by the lower court's judge confronting many documents incidental hereto, and upheld by this Court, requires similar efforts by the accuser, to prove not only the error alleged but also the insight of the interpretation proposed. Therefore, on this regard, the list of new criminal hypothesis and the invocation of the request to summon forty one individuals on the belief that “their testimony is essential to determine their responsibilities” is insufficient–
Federal Court’s Ruling ratifying the file of the complaint
JUDICIARY OF THE NATION
Courtroom II – C.30.476: “National Agency for Scientific and Technological Promotion on dismissal”
Federal Court No. 8 – Clerk’s Office No. 15
File No. 10.152/2009
Record No. 33.609
/////////////////////////////////////////Buenos Aires, October 17th, 2011
SEEN: AND CONSIDERING:
I.- The Court has received the proceedings by virtue of an appeal filed by accuser Eduardo Saguier and his representing attorney –see pages 510/2- against the judgment on pages 497/505 overleaf- whereby it was ordered to dismiss the case due to absence of crime, under the terms of section 195 of the standard regulation.
The appellant alleges lack of investigation of reported facts and omission to produce evidence. Said argument will not be upheld by the Court, since several proofs have been produced, many of which were conducive to refute the criminal hypothesis reported by the party, and as it was confusing and extremely comprehensive, upon request of the prosecutor –see item 2, page 33 overleaf- it had to be summed up by the accuser, in order to clarify, beyond the provisions of pages 5/6, the circumstances of time, means and place particularly regarding the reported irregular management of subsidies.
II.- An investigation is carried out about the alleged “influence peddling” and irregular distribution of subsidies by authorities of the National Agency for Scientific and Technological Promotion –ANPCYT, which would have taken place between years 2001 and 2005, continuously in favor of members of advisory committees, authorities of the CONICET, the CONEAU and universities.
The appellant reported that due to the fact that he publicly disclosed the abovementioned maneuvers, among others, he would have been subject to reprisals which materialized in the rejection of two periodic reports, relevant to the years 2002-2003 and 2004-2005, which acceptance was required to remain acting as researcher of the CONICET –see first stage requirement on pages 32/4.
Saguier filed complaints with different research agencies with regards to the management of subsidy granting. In the Anti-Corruption Office he processed reference folder No. 8038; before the Prosecutor’s Office of Administrative Investigation, proceeding No. 23.612/1592/2006 was conducted and similar claims have been filed with the Office of Public Defense –see copies of pages 70/5 of the main file- and with the National General Auditing Office.
III.- The National Agency for Scientific and Technological Promotion (ANPCYT) is a national agency engaged in the promotion of activities related to science, technology and productive innovation. Through its three funds: “Fund for Scientific and Technological Research” –FONCYT-; “Argentine Technology Fund” – FONTAR- and “Trust Fund for Industrial Promotion of Software” –FONSOFT, it finances projects intended to improve social, economic and cultural conditions of our country. Particularly, the FONCyT manages different instruments for promotion and funding aimed at subsidizing research projects of different characteristics, awarded through public tenders. The single criterion for subsidy awarding is “recommendation,” through the analysis of the quality and relevance of projects, carried out in two consecutive stages. In the first one, national and foreign peers evaluate the intrinsic quality of the project, while an ad hoc committee evaluates the relevance thereof in the other aspects, in accordance with the relevant specifications set in the call for bids.
The activities and jurisdiction of the ANPCyT are regulated by decrees 1660/96 and 289/98 and the awarding of subsidies is performed in accordance with the bidding specifications specially set for each call for bids.
Section 13, subsection e) of decree 1660/96 sets forth that the evaluation system “should set that … no evaluator may be part of the evaluation of those topics regarding which his presence entails a conflict of interest.” Note that this is the only specification regarding the reported incompatibilities. On this regard, the Investigation Coordinator of the Anti-Corruption Office, José Ipohorski Lenkiewicz, who after comparing the information of the lists of researchers who received subsidies in the same tenders they acted as area coordinators or members of the Ad-hoc committee, on the aforementioned file No. 8032, ordered that “…the reported facts would not be typically subsumed into the crime foreseen in article 265 of the criminal code…”, therefore, from the analysis of the evaluation system, it appears that the “officials-researchers” are members of a professional organization and thus, their will in subsidy awarding to a specific project should be integrated with other officials’ will. That is why, in principle, it would not be correct to say that they exercise a direct decision power on the awarding, specially when they would have engaged with the Public Administration in the same way any third party would do and in compliance with the same rules objectively required to do so. So, anyway, “... it does not prevent them from being assessed in the light of a potential conflict of interest under the terms of section 13 a) of law 25.188.” In case said conflict of administrative nature occurs, a specific sanction is foreseen, which, if applicable, implies the nullity of the act under review –section 17, law 25188-, but which is beyond the jurisdiction of the criminal law.
Likewise, from the analysis of records incidental to the main proceedings and regarding the bidding specifications relevant to Scientific and Technological Research Projects of periods 2000-2001; 2002; 2003; 2004; 2005; 2006 and 2007, only in two of them it is expressly stated who are prohibited from requesting subsidies.
The specifications of the call for bids for PICT 2002 seem to be stricter since they set forth that: “The authorities of the SECyT; the ANPCyT; the coordinators of the evaluation system and the members of the FONCyT may not submit bids,” whereas in PICT 2004 the prohibition to the “authorities of the SECyT, the ANPCyT and the members of the FONCyT” was removed.
Witness Carlos Casanello –pages 448/9, in charge of the management of the FONCyT, accounted for the reasons of said inclusion. He states that said prohibition was expressly added to the aforementioned call for bids because until year 2002 there was only one coordinator per area, who eventually, would be responsible for analyzing his/her own project. He adds that, starting in 2003 each area had three coordinators; therefore, it was not necessary to add said provision to the subsequent calls for bids.
On this regard, the statements of María de los Angeles Apólito –Secretary of the Medical Sciences Area of the SEPCyT-FONCyT 2004/9- are clarifying. She stated that in practice there are two ways of avoiding conflicts of interests. Either does the coordinator involved in the project leave the accreditation meeting when such project is going to be analyzed, and the other two coordinators remain in charge of the selection of peers who will evaluate it or, if applicable, the project is sent to another similar area for evaluation –see pages 101/2 overleaf of the photocopies of file FIA No. 23612/1592-.
As an example we have the case of Marcelo Frías, Researcher in charge of Project No. 11-11071, submitted on 12/20/02, who after the call for bids was appointed Coordinator of the IT, Communications and Electronics Area –see Res. No. 066 dated 5/5/03 and exhibit I, pages 25/7, file No. 097/02. In this case, where there might have been “...a clear conflict of interests, Carlos Casanello agreed to be in charge of the evaluation process for this project.” (see page 5 blue record Pict 2002 Project No. 11-11071, quoted).
Likewise, we can mention the events occurred regarding project No. 08-10849, submitted to PICT 2002 on 1/6/03 by lead researcher, Dr. Luis Mroginski. On 4/8/03, he was appointed Coordinator of the “Agricultural, Cattle, Forest and Fishing Technology” Area, -see Res. No. 043 and exhibit I on pages 22/4, file 097/02, quoted- that is to say, after the submission of such project, and his appointment was on an honorary basis.
Likewise, let us mention project No. 11-11150 submitted by Hermenegildo Alejandro Ceccato for the “IT, Communications and Electronics” area. Note that in this case, although the professional was appointed by the Board of Directors of the ANPCyT, by virtue of Res. No. 043 dated 4/8/2003, Coordinator for the period 2003, he held the position in an area –the area of “Physical Sciences and Mathematics”- different from the one where the project sponsored by him as lead researcher had to be evaluated. Based on the above, the report issued by the Ad-hoc Committee stated that the members thereof did not have any conflict of interest whatsoever –see page 15, light blue folder Project No 11-11150.
Note that the evaluation positions should be held by “well-known and active researchers” and that in our country, the scientific community is extremely reduced –see testimony of Pedro Manfredo Alexander on page 401/overleaf of the main file. This situation contributes to set a framework conducive to the aforementioned conflicts, and the need for making palliative efforts, such as those referred to above, to reduce biases and ensure unbiased stances over the project.
In short, the circumstances stated above show that the individuals mentioned by the accuser throughout the record and pertaining to different scientific and university levels of the country would not have failed to comply with the limited provisions applicable to this matter; in contrast, they would have acted within the framework of powers granted by the applicable legislation, situation which the appellant could not change.
IV.- Now, we should address the existence of reprisals the accuser alleges to have suffered as a consequence of the charges brought. He states that due to the accusations, two reports he statutorily had to submit to the CONICET were consecutively rejected and qualified as “NON ACCEPTABLE.”
In said agency, two cases were filed. File No. 3987/04 relevant to the work done by the researcher during the period 2002/2003 and No. 2209/06 regarding his role as independent researcher during the years 2004/2005.
In the first case, the negative decision was adopted by the Board of Directors by virtue of Resolution No. 1672 dated 9/24/04, after the evaluation of the activities carried out by the researcher performed by an Advisory Committee which advised to make such decision –see pages 24/5. Saguier was duly notified –pages 30/1- and was able to make use of the relevant procedural tools. This way, the nullity set forth on pages 66/84 was ruled out on pages 151/2. The same happened with the appeal requesting reversal appearing on pages 42/57, not to forget that before the adverse resolution –Res. No. 2197 dated 12/16/05- he attended to the hearing held -see pages 164 and 165/6- where his argument of unconstitutionality of decree No. 1661/96 was answered.
In file No. 2209/06, opened to evaluate his performance during the period 2004-2005, it may be noted that Saguier made use of several resources before and after the issuance of Res. No. 2255 dated 9/26/08 –see pages 112/3- so it was also adversely qualified.
Note that in this case, none of the experts who were part of the advisory committee were members when his prior report was evaluated, except for the case of Ana Inés Ferreira, who left the meeting during the analysis thereof –see certificate on pages 108/10.
In short, the records analyzed do not show the existence of reprisals or partial measures adopted against the accuser as a result of the opinions publicly disclosed. In contrast, the proceedings briefly described above show that the resolutions unfavorable for the reporter were adopted in accordance with the legislation applicable thereto and within the scope for action of the individuals responsible for the issuance thereof, who stated sufficient supporting reasons and grounds. It should be reminded that, at that time, the appellant made use of all the tools he had.
V.- Finally, it should be noted that the detailed analysis of the events performed by the lower court's judge confronting many documents incidental hereto, and upheld by this Court, requires similar efforts by the accuser, to prove not only the error alleged but also the insight of the interpretation proposed. Therefore, on this regard, the list of new criminal hypothesis and the invocation of the request to summon forty one individuals on the belief that “their testimony is essential to determine their responsibilities” is insufficient–see record on pages 533/540 of the main file.
Now therefore, we hereby uphold the resolution challenged in all the decisions contained therein subject to the appeal.
Consequently, IT IS RESOLVED: To UPHOLD the interlocutory judgment appearing on pages 497/504 overleaf, regarding the order to dismiss this case by virtue of the provisions of section 195 of the standard regulation.
Be these presents recorded, informed to the General Prosecutor and delivered to the Lower Court where all other relevant notices should be served.
Signed by: Horacio Rolando Cattani-Martín Irurzun-Eduardo G. Farah.-
Before me: Pablo J. Herbón. Court of Appeals' Secretary
Destruction of heritage sites in Syria raises questions about cost of democracy
Por Rolin James -
Thursday, Jan. 31, 2013 at 1:18 PM
Posts
- Category: fat burning diet
- Category: fat burning diet
- Category: fat burning diet