Municipalities of Esmeraldas, in the “magnifying glass” of the Comptroller’s Office
A $ 100 million increase the alleged illegal charges made to 30 companies through coercion, without being notified and wrongly applying the law. Outside lawyers and officials of 10 councils in three provinces would be involved.
The outgoing mayors inherit a delicate judicial and economic problem to the new authorities that will assume this May 14, since there are judicial decisions that order the municipalities to return the money.
The Comptroller General performs special examinations to the municipalities of Esmeraldas and Quinindé, to determine alleged undue charges to more than 30 companies and the destination that had local public funds that would exceed $ 100 million.
The audits are related to anomalies in processes of determination, issuance, collection, collection of annual patent taxes and 1.5 per thousand on total assets, as well as to the exercise and recovery of values of said taxes through coercive action.
The Comptroller told the Public Media that in the cases of Esmeraldas and Quinindé the audits analyzed the period from January 1, 2013 to December 31, 2017.
And it was not ruled out that similar audits were carried out to the town councils of Atacames, Eloy cantons. Alfaro (Limones), San Lorenzo, Río Verde and Muisne, also located in the province of Esmeraldas, as well as that of Naranjal, in Guayas and two in Manabí.
The problem and the protagonists The Constitutional Court and judges -according to their rulings and rulings for three years-, have agreed that in most of those town councils, attachments to the accounts of companies have been ordered at will (see graph).
They have done so without duly notifying credit titles or citing payment orders to the defendant so that they can exercise their right to defense, which would violate the right to due process and legal security.
According to the website of the Judicial Branch, some cases occurred in the Municipality of Esmeraldas for which embargoes were placed on the accounts of Corpetrol SA, ExxonMovil Ecuador Cia Ltda., Lutexsa Industrial Comercial, Duragas SA, Terpel-Comercial Ecuador SA, Vepamil SA, ENI Ecuador SA, and Petróleos y Servicios PYS CA; the undue charges added to one registered in Atacames amount to $ 7.1 million.
Other companies affected and that did report are: Unilever S.A. with $ 1.5 million and La Llave S.A., with undue charges of $ 450,000. The same happened with the Municipality of Quinindé that issued credit titles for more than $ 5 million, to the detriment of ARCA Continental SAB de CV, La Fabril S.A, Petróleos y Servicios PYS C.A., Petrolríos S.A. and Tecniequipos S.A. It also seized accounts and charged DirecTV, for $ 7.7 million from the councils of Eloy Alfaro (Limones), San Lorenzo, Rio Verde, Atacames, Quinindé, Muisne and Esmeraldas, plus Naranjal, in Guayas.
According to Roberto Aspiazu, executive director of the Ecuadorian Business Committee (CEE), the damage exceeds $ 100 million. He said that the paradox is that they proceeded to the seizures and collections without the companies have domicile or commercial activity registered in those cantons, which violates the regulations (see graphic).
Before the challenges, the judges ruled in favor of the companies, but the councils alluded to have failed to comply with the court order to return securities seized.
The serious thing is that the majority of mayors of these cantons will finish functions this May 14 and will inherit the problem to the new authorities: they must obtain money to fulfill judicial order. Spokespersons of the affected companies agreed that administrative, civil and criminal actions should be promoted against outgoing mayors, lawyers who advised them and others involved in this “corruption network”.
The CEE highlighted that what happened “is the product of the management of a group of lawyers who have promoted the idea of obtaining easy money, charging huge sums for their” diligent “services. In Esmeraldas they have approved an ad hoc ordinance to legitimize the commission payment of 20% of the proceeds “.
They propose that, when judicial proceedings are completed, the Right of Repetition, stipulated in numeral 9 of article 11 of the Constitution, is applied against those involved (see sub-item). The Office of the Comptroller General indicated that, for the time being, they are carrying out two audits and that if there are indications of responsibility, they will send the reports to the Office of the Prosecutor, for the initiation of investigations.
Ramiro Garzón, president of the Federation of Metal Industries of Ecuador and manager of Novacero, reported that they initiated criminal proceedings in the District 1 Prosecutor’s Office, against the outgoing mayor of Esmeraldas, Lenín Lara and the coactiva judge of the canton.
In the case of that union, the “fraud and robbery committed by this network of lawyers and authorities amounts to $ 6 million, said Garzon. He indicated that they have met with the new mayors of Esmeraldas, Eloy Alfaro and Quinindé, who told them that “this robbery has been mounted by a group of lawyers who invent ways to get resources and collect a percentage. ” He stated that since there is no legal security, they will stop operating in the Port of Esmeraldas.
Regarding the destination of these funds, he highlighted that the new mayor of Esmeraldas, Lucia Sosa, said that these resources have backups but there are no works. “He said they will take measures, he asked us to send him the complaints.” Involved do not give interviews Public Media requested an interview with Lenin Lara and Anabel Meza, of Communication of the Mayor’s Office, assured that they would fix us day and time; but until the closing of this edition he did not answer again. Kevin Ronquillo Terán, lawyer representing the Cabildo of Eloy Alfaro, who on May 7 went to Quito to the hearing for the challenges presented by affected companies, said he could not give interviews and that if at any time he does, it will be in Guayaquil He was called and he did not answer.
Hernán Andrade, communicator of the Mayor’s Office of Río Verde, indicated that there are problems in the municipality due to lack of payments, so as they are unemployed, the authority could not attend interviews. Fredy Yánez, public relations officer of the Mayor of San Lorenzo, did not respond. Finally, Christhian Fernandez, communicator of the Association of Ecuadorian Municipalities (AME), said that “nothing has arrived on this matter.” (I)
onstitution and jurist speak of the right of repetition According to the Constitution of the Republic, in its article 11, numeral 9 stipulates that “… any person acting in the exercise of a public power, shall be obligated to repair the violations to the rights of individuals for the lack or deficiency in the provision of public services, or for the actions or omissions of its public officials and employees in the performance of their positions. ” Thus, it stipulates that if this case occurs, the right of repetition against the persons responsible for the damage produced may be initiated, without this meaning avoiding the civil, criminal and administrative responsibilities that may be caused by public mismanagement in a municipality.
In this regard, the lawyer Ramiro Román Márquez explained that if in this case the employers win the lawsuit against the municipalities, the institution is responsible for making the payment of the affectation. But that when assuming new authorities, the incoming mayor could access the right of repetition against officials who committed arbitrariness, because there is economic impact on the community.
“In a constitutional state, if there is the impact of rights, you can sue the municipality with the alternative of repetition, but as long as there is a social impact,” he said. He added that because it is a particular interest, the Attorney General should intervene. Public Media contacted Vanessa Acuña, of the Social Communication Department of the Attorney General, for a spokesperson to refer to the subject, but until the end of this edition did not confirm the request.
According to Román, this is a particular interest that affects a social interest. “In the constitutional state, the municipality provides social services that are above particular interests. I believe that the judge will reject it, “Román added. However, if private companies manage to win the demand, the incoming mayor can, in addition to answering the demand, reprimand about what is affecting socially.
If there was an undue payment, which affected socially, the municipality should remonstrate that the demand be dismissed. According to the lawyer, with his social perception he explained that the return of collections would produce a suspension of works or services to the community such as: cottages, delivery of economic, educational and social aid. In addition, if there was a prejudice against the companies, the Procurator’s Office would respond to the mayors to order the right of repetition and agree to refund the proportionality of the amount.
“The proportionality will explain if it is more important to perform the social service or return the amounts to the entrepreneurs. From my point of view, there will be a substantive discussion at the moment of agreeing the amounts of return, “he concluded.