I find great ambiguity in the concept of “Economic Damage to the State” (EDS), which in general terms is the affectation of state assets by officials and authorities, but which has become a reason for political persecution.
EDS is one of the most common offenses in a society that idolizes the state and usually manifests itself on different scales. For example, it is not uncommon for civil servants to bring supplies from the office to their homes; or that the authorities use official vehicles for private purposes; or that police officers exchange fines for bribes; or that MPs, who do not legislate or supervise, raise their salaries as they please, among other subtleties. Some of these facts may seem nonsense, but they reveal an ethical attitude towards the state that is not consistent with the ideology embraced. Usually there is an appeal – as in the joke of the boy reprimanded by the pool lifeguard for urinating in the water – that “everyone does it”. “That’s true,” replied the lifeguard, “but not from the trampoline.”
There are, in fact, small and large economic crimes, as recognized by art. 4.5 of Law 1390 of 27 August 2021 when it sets the “serious” damage to the State at one million dollars (at the legendary exchange rate of 7 Bs/$). Well, what crimes are we talking about in order to classify them as serious?
Of course, there is the bribery of public officials to take advantage (through the sale of data, fraud or irregularities) of tenders and contracts, even detrimental to the interests of the State, which is the one who ultimately pays the bribes. Similarly, according to the MAS government, the recent roadblocks of its own partisans have caused enormous damage to the state.
The performance of the State Attorney’s Office in international arbitrations is questionable, even in the context of the “mission impossible” of defending arbitrary acts of governments. The Quiborax and Glencore cases, of more recent memory, seriously call into question the actions of Evo’s former lawyers, the heads of that institution.
YPFB has officially admitted the loss of $130 million due to Boyuy’s exploration failure. He was told from the outset: not having a specific contract, Boyuy drilling has legally become part of the “services” of the Margarita field and, therefore, a recoverable cost for Repsol.
Of course, there are acts that, even if they cause damage to the state, are not punishable, such as those that result from the application of policies approved in a democratic election through electoral programs. It could be said that the “nationalization” of Evo Morales is, in the long run, a fiasco, because the final damage to the state outweighs the immediate benefits. However, it was a democratically approved policy and that makes it unpunished. Hence the importance of direct debates between candidates, in spite of cowardly debating “with the people”. The difference is marked by the way in which these policies are implemented. Let me explain. Lithium mining is a national milestone, but was the choice of the evaporation method of swimming pools the result of rational analysis? We are talking about almost a billion dollars literally “thrown to the water”. The same, and even more, applies to the ammonia and urea plant which usually produces more shutdowns than urea, even stopping just to allow more gas to be exported to Argentina. Didn’t the defense before arbitration have betrayals and incompetence that merit an official audit? And didn’t the Boyuy well affair show a desperation without legal assistance? In short, there is also a EDS when state policies are poorly applied, due to obvious personal responsibilities, and that damage must not go unpunished. Finally, who will be charged with the damages caused by the acts of a Cuban agent and former U.S. ambassador?