Caracas, March 24 to 26, 1999
Justice Julio Salvador Nazareno, Chief Justice of the Supreme Court of Justice of the Republic of Argentina
Justice Julio Salvador Nazareno
Your Honor, I am in favor of the party charged being declared guilty on the basis of applicable legislation which, in this case, is the Inter-American Convention against Corruption. My decision is specifically based on Article 6 1-A, which establishes that the direct or indirect request for or acceptance by a public official or civil servant of any object of pecuniary value or other benefits such as gifts, favors, promises, or advantages for oneself or for another person or entity in exchange for the commission or omission of any act in the exercise of one’s functions. After carefully listening to the statements and arguments of the defense attorney, I believe that there can be no doubt that the wife of the accused, we must recall that this marriage was in force at the time that the house which was in the name of the wife of the accused was given as a gift, so that this element, this proof of acceptance by the woman who together with the Guzmán, the party charged, have no visible means of income, is sufficient to configure in the case, as defined in the aforementioned article, the acceptance of a gift of no less than one million dollars; a gift that has neither been justified by the accused nor by the wife, so that in my opinion the verdict is guilty.
Chairman
Justice Carlos Mario Velloso, the Deputy Justice of the Supreme Court of the Federal Republic of Brazil, has the floor.
Justice Carlos Mario Velloso
My verdict was also guilty. I agreed In my opinion the legal provision that was infringed was Article 6 letter C of the Inter-America Convention against Corruption: any act or omission by a public official or a civil servant in the exercise of assigned functions in order to illicitly obtain benefits for oneself or for a third party. The evidence I considered was the following: 1) visits by the accused, Guzmán, to the company that had won the bid tender and substantiated proof that he had received proposals in trust and that he had custody of same. The visits took place on May 30th and two days later on June 1st. The accused stated in his defense that he had been sent by the Minister of State, deceased at this time. The house was purchased for one million dollars by the wife of Mr. Guzmán before the marriage was dissolved, with payment effected by the company that won the bid tender. The accused defends himself by saying that he was not aware of the matter and that he separated from his wife, and that a real estate agent came to the house and his wife simply signed. Defense: the name hardly appears, but we know that the real name of the corrupt party never really figures in this business of corruption. The third piece of evidence used was that Mr. Guzmán earned a salary of two hundred thousand dollars per year from the company that won the bid. Defense is based on this point; presumption of innocence. The presumption of innocence is a conquest of civilized peoples, a conquest of law. One should argue as follows: justice is presented as a woman holding a scale with two plates; on one plate are all the inalienable individual rights, on the other the no less inalienable rights of society; the social or collective rights, so that the presumption of innocence cannot serve as a screen for impunity when the rights of society are at stake, when public funds are at stake, above all funds of the people. These are the arguments on which I base my opinion of guilty.
Chairman
The Chief Justice of the Supreme Court of Justice of the Republic of Colombia , Fernando Arboleda Ripoll, has the floor:
Justice Fernando Arboleda Ripoll
Thank you. As in the case of my two colleagues, I reached the decision that Mr. Guzmán is guilty. It is clear to me that the awarding of the project to Space International, a public interest project was motivated not by what is good for society, but rather by the personal interest of the accused, Mr. Guzmán. This is corruption and this type of corruption, pursuant to the legal bases of the Inter-American Convention against Corruption, I would classify under letter C of point N| 1 of Article 6, as did my colleague the Deputy Justice of the Supreme Court of Brazil. But, in view of the significance of the mock trial and the topic under discussion, I would like to stress two important points. It seems to me that from the point of view of proof, from the point of view of trial proceedings and from the point of view of the scope of the decision that we are seeing the problem of corruption as a problem of personal conduct, and not as a problem of far-reaching social proportions. Consequently, I believe and I base that belief on other legal arguments, bearing in mind the that we were told at the beginning of the trial that we would be free to do so and that in this type of a situation the decision has to declare the bid and the awarding of the contract invalid and unenforceable, as well as invalid any other type of business related with the corrupt activity. If this is not done, the principles would be invalidated, as well as the reestablishment of law, but basically, and with respect to matters of corruption, the principle that society, for these effects, has an integrity that constitutes a legally protected interest that should also be under the guardianship of the Court. From that point of view, in my opinion the decision should have included those other to aspects and, in conlcusion, a third aspect: publicatoin and dissemination of the decision of the court as another example of the oases of integrity that should be present in the fight against drug trafficking and in pro of transparency. Thank you.
Chairman
The Chief Justice of the Supreme Court of Justice of El Salvador, Justice Jorge Eduardo Tenorio has the floor:
Justice Jorge Eduardo Tenorio
Madam Chief Justice. I also agree with the verdict of guilty based on the proof furnished in the proceeding as well as on the provisions of Article 6 of the Inter-American Convention against Corruption, specifically letters A and C, and also based on Article 9 of the same convention dealing with unlawful enrichment. We must acknowledge that evident, formally evaluated, has certain weaknesses and taht the work of the government attorney’s office was not completely efficient in this case. However, despite this fact and in the interest of Veneri and the social benefit, I believe that the elements, evidence in the procedings lead us and, in effect, have led most of us to conclude that Mr. Felipe Guzmán did take part in corrupt activities. In this case, not only Mr. Guzmán should be tried by also the company or the President of the company Space International, Ltd., which according tot the docuemtn is being investigated, but its legal representative who furnished payment for the property in the Bahamas that was given to Mr. Guzmán’s wife should have been criminally processed. Therefore, onthe basis of these findings, and despite the weakness of the evidence from the investigation by the government attorney’s office, which was very deficient and jeopardized the guilty verdict that could have contributed again to act of impunity in the Republic of Venerí, I believe there is sufficient cause to declare the accused guilty of an act of corruption based on Letters A to C of Articles 6 to 9 of the same Inter-American Convention Against Corruption. That is my decision.
Chairman
The Justice of the Third Division, Fourth Section of the Supreme Court of Spain, Justice Antonio Martí García has the floor.
Justice Antonio Martí García
With your permission, Madame Justice. I am the proverbial "bad guy" of "heavy" in this picture. In my opinion Mr. Felipe Guzmán is innocent of the corruption of which he is accused. While we were there inside, I maintained my position, but now, after hearing the other arguments, ..... I have more reason to think so and each reason may be found in an Article. The first is in Article 6.1.A, the second is in 6-1-B and the last in Article 9. Corruption is a repugnant offense that invests society as the government attorney’s office has stated, but the fact that it is included in penal codes is no less a crime. All penal codes are governed by the principle of presumption of innocence. Presumption of innocence means that justice suffers more if an innocent person is condemned that if a guilty person is absolved and this is the assumption under which we are working. But I would first like to apologize because I am a Supreme Court Justice, have been in administrative law for 28 years, and have been away from the criminal jurisdiction for 14 years. I do have experience in that area, but I will state my position based on the law itself. Corruption, according to the code of procedure is not configured by the mere fact of granting a favor to someone or obtaining a benefit, but rather has two requisites: that a company benefits and that the company officer makes that benefit possible by acting on behalf of the company and, in turn, also benefiting. This is what Article 6 says: the direct or indirect request or acceptance by a public servant exercising public functions of any object of monetary value in exchange for the commission or omission of any type of action in exercising his public functions.
Let us examine what occurred during the bid. The only thing that is attributed to the accuses is that on the same day he received all the documents of all the companies that had participated in the bid and that he visited the company in question Space internaional. Now then, that visit did not alter the terms of the bid because the facts proven acknowledgte that after checking the evaluation of the bids, Spice International was the one that had tendered the best bid. In other words, if the process had continued its normal course and if the members of the committee had checked the evaluations, they would have awarded the contract to the same company. On the basis of the facts proven there is noting against, no alteration of the bids, nor would the visit have made it possible for the accused to alter the terms of the bid. The bid was awarded to Spice and then it was proven that the company had tendered the best bid. As a result, Spice did not benefit in any way from the Mr. Felipé Guzmán’s actions on the basis of what was proven. Consequently, I am lacking one of the two presumptions of a criminal offense. If there is no benefit for the company, we cannot claim corruption.
In the second place, let us see if it has been proven that Mr. Felibe Guzmán obtained a benefit as a result of his actions; let one of members of this Court try him for unlawful enrichment. It was not proven that Mr. Felipe Guzmán profited unlawfully because after working as a civil servant he left and joined a company that pays him 18 times more than what he earned before. This is no crime, nor is it unlawful enrichment. It is enrichment, but lawful and the result of an action taken by Mr. Guzmán.
The problem of the house: most of the members of the Court take it as a "fait accompli" that the house was bought by Mr. Felipe Guzmán. But there is no real proof that he bought that house. First there is no connection between Mr. Victorino Martin – the person who paid for the house and received the check – nor is there a connection between Mr. Guzmán and his wife. This remains up in the air! I would have to give a leap of faith and suppose that this money had been collected by Mr. Victorino Martín and then later given by Mr. Guzmán’s wife or by Mr Guzmán. There is no proof. Therefore, as far as I am concerned two assumptions are lacking for the presumption of the crime of corruption; the benefit for the company as a result of Mr. Guzmán’s actions, and the unlawful enrichment of Mr. Guzmán. Something else is that irregularities in the negotiation were observed and that even Mr. Felipe Guzmán acted in a way a civil servant should not act during his performance. If he was taking part in a bidding process, with an enterprise, it certainly was not moral or ethical to visit that enterprise. However, we cannot assume that this single visit originated a benefit to that enterprise and an enrichment to him.
I would also like to point out to the audience that this frequently happens to justice in Venezuela, in Spain, and anywhere. Facts which, in my opinion, force us to give guilty judgements and then, while formally analyzing the documents the budgets do not match in order to give a guilty verdict. And, under the slightest doubt, both in Venezuelan and in Spanish legislation which are the ones I know, the court has to opt for the application of presumed innocence. This, in my opinion, has not been the cause for presumed innocence but the lack of proof of both requirements necessary for the existence of corruption offence. This, as repulsive as it may seem, must be judged with the same guarantees, at least in my opinion, as the rest. With this, I finish.
Chairman
Justice Oscar Najarro Ponce, President of the Supreme Court of Justice of the Republic of Guatemala has the floor.
Justice Oscar Najarro Ponce
I also voted to declare the accused guilty. In certainly looks as if there if no proof against him because it is not a direct proof; it is indirect. There are fully proven signs that show the participation of the accused. These are in the documented proofs. A witnessed proof and his qualified confession where he admits acts that harm him, such as having joined the enterprise only a few days after the bid, and does not give a satisfactory explanation for entering the firm. In the documented proofs we have the Arrival and Departure Book which was fully proven and he did not contradict. On the contrary, he admitted having arrived at the company. There is also the purchase-sale document. And although he does not appear on the document, there are signs that he benefited from the deal because his wife admits that he brought the document home for her to sign. The prosecutor found it there. The wife says she did not pay. This is true. It is not true that there is proof that the accused paid. But someone paid and it is true that the house is in the name of the wife who is indirectly benefiting the accused. The Inter-American Convention, in article 6, letter C, states: "This convention is applicable in following corruption acts: C – the realization by a civil servant or a person exercising public functions of any act or omission in the performance of his/her functions with the purpose of illicitly obtaining benefits for himself/herself or for a third party." Logically linked to the accused, but the principal accused cannot be in this case because it was a third party - if we can call it so – the wife, the one who benefited by acquiring the house for quite a high price.
There are also the witnesses of the fundamental facts. Namely, that the accused participated in the bidding committee, something the accused admitted in the minutes of the bid. He stated he kept the special documentation in deposit at the committee’s request. I insist I think he is guilty through a logical analysis of the sings that are fully proved and lead to a criminal offence. Thank you.
Chairman
Justice Cecilia Sosa Gomez, President of the Supreme Court of Justice of Venezuela has the floor.
Justice Cecilia Sosa Gomez
I also found Felipe Guzmán guilty for the following reasons: First, as the Kingdom of Spain’s magistrate indicated, I dissent that the bidding process for having taken place under totally legal regimes could have very well benefited the enterprise without having had to establish a connection with Felipe Guzmán, independently from whether the process was carried out legally. There is no doubt in my opinion that handling of confidential information was well proven from the point of view of the firm Space International. This generated for him the benefit of knowing the terms under which the bid was developing. I say this because in the second place, obviously, a mock trial means relying on the elements of proof which were presented. In my opinion there is also triangulation between the Guzmán spouses which clearly proved by the check; between the Guzmán spouses and the firm Space International. The wife’s testimony, which makes this triangulation evident, is quite an important proof for a guilty pronouncement. On the other hand, I also value the photographs of the hour, the purchase-sale contract, and the declaration about the incorporation of the house, for a considerable amount, to the Guzmán family’s patrimony. Also important is the imbalance if we compare the presumed patrimony which Felipe Guzám could own after working eleven years at a ministry with the salary he mentioned to his having, no matter in which way, through the check I mentioned before, a real estate property valued at the amount we were told.
This is my opinion. Of course, in a mock trial where many of my magistrate colleagues have pointed out could have changed this verdict. It is an interesting mechanism, even dissenting, because I believe oral expression is also valued. We this we did this in fact and declared Felipe Guzmán guilty.
We would like to thank you for your patience and it would be nice to repeat this experience when we meet again. It is very enlightening to have magistrates from different countries approach a case because instead of distancing us this joins us and shows the way we deal with the elements before us. Thank you.