The concept of corruption is so complex that different authors have created notions that help us to circumscribe it. Thus, “Latimbarómetro” understands corruption as any act or omission that a public servant performs in exchange for a benefit, and that is not permitted by law.^[4] With this, it is understood that not only the action is proscribed, but also the omission in the application of norms within the framework of legal and previous duties.

Although traditional notions highlight public servants as the central axis of administrative corruption, reality surpasses this notion, thus, we observe that corruption is also found in the private sector, where we find that in most situations in which public servants have the opportunity to go against the law with transactional conducts, there is a direct relationship with private parties, widening the spectrum of harmful repercussions that already existed.^[5] The linking of private subjects, in this broader notion, is manifested in the creation of corrupt pacts of all kinds. For example: pacts in electoral campaigns, pacts in contractual concessions, or even pacts in macro fiscal and monetary policies.

In addition, the exercise of public office for transactional purposes does not only seek pecuniary gain, but may also have benefits in terms of personal or institutional loyalty, electoral support, family, caste or friendship, social or political position, etc.^[6] Thus, as stated by Nye, administrative corruption can be defined as: "any violation of the public interest to obtain special advantages" or "any illicit conduct used by individuals or groups to obtain influence over the actions of the bureaucracy".^[7]

With the above, it is possible to recognize not only the complexity that protects the plurality of actors in the acts of corruption, but also the variety of motives^[8] they have to execute their illegal acts. Similarly, the doctrine manages to identify some factors that present themselves as opportunities for corrupt behavior; these are, among others: excessive discretionary power, deficiencies of information and controls over the administrative acts of public servants. For the same reason, this poses a propitious scenario for public servants to divert their probity towards corrupt behavior.^[9]

Public servants have an evident discretionary power to accumulate private capital, the accumulation usually occurs by taking advantage of their position and profession, which is almost always poorly and irregularly paid. As a consequence of this, corruption takes place mainly in societies where public servants are sporadically and less accountable, where there is little transparency in administrative and government transactions, and where there are officials who are dissatisfied with their working position.^[10]

It is important to note that it is the personal sphere of corrupt subjects the most basic cause of corruption, since in addition to the factors of "motives and opportunities", an essential factor is that the corrupt subject does not have or ignores a strong and cohesive organizational culture configured on public values as maxims to follow in his office, namely the general interest.^[11][12] This situation of cultural weakness about the public makes the official chooses to entrench in their motives for personal benefits and take advantage of the opportunities granted by his investiture.^[13]

In this sense, Laporta & Alvarez point out that:

“la causa inevitable y, en último término irreductible de la corrupción es la conducta deshonesta del actor público. En último término la corrupción se da única y exclusivamente porque un individuo, sea cual sea su entorno, toma la decisión de realizar una acción determinada, la acción corrupta (…)”^[14]

This diversity of subjects and motives are configured through different strategies with which the corrupt scheme is used. In this sense, the strategies identified by Bautista^[15] provide the analysis of the category with useful elements to identify the depth and multidimensionality of the harmful repercussions it causes. In order to have a more concentrated analysis of these strategies, they will be divided into three categories:

a. Intellectual or cultural corruption. It is when either people with academic prestige are induced to be the guarantee of the ideology behind the corrupt plan, or to influence through economic incentives the research with the useful approaches to produce the plan.

b. Economic cohesion as a method of persuasion. This is when the different subjects receive the support of different financial agencies and international resonance, with this pressure is put on governments to assume different policies aimed at facilitating the incursion of the private sector in public administration. The tactics used for this strategy range from threats of denial of credit, to economic blockades and the discrediting of countries in the international community.

c. Political corruption. This is the transaction to obtain control over the actions of public servants such as presidents, senior officials, parliamentarians, social or union leaders, through bribery, swindling, extortion, favoritism, electoral financing, fraud, embezzlement of public funds, nepotism, etc.

For some authors there is a substantial difference between political corruption and administrative corruption, however, for Manuel Villoría:

“La corrupción administrativa o de los empleados públicos no puede separarse de la corrupción política, ya que se alimentan una a otra. De tal manera, de los políticos corruptos surge la corrupción administrativa, aun cuando la profesionalidad del servicio público pueda atenuar la expansión del fenómeno”.^[16]

Political corruption is therefore a macro category that groups together the other types of corruption. Therefore, these behaviors manage to permeate the decision-making spheres of public power, making all rules and administrative acts arising from illegal transactions, born corrupt. Likewise, corruption is not limited to a transactional exercise of alienation of benefits, but in some scenarios, it becomes a contamination of the entire system and its products, this contamination has been called by a sector of the doctrine as capture or co-opted reconfiguration.

State capture has been understood as the illicit participation of private sector actors in the creation and consolidation of all types of norms (laws, decrees, administrative acts, execution of public contracts, etc.), with the aim of obtaining benefits of all kinds. This means that there are invasive levels of corruption that can permeate state institutions consolidated in legality in order to instrumentalize them and then co-opt decision-making spheres at the local and central levels.^[17]

Likewise, in order to advance illegitimate purposes, illegal groups can permeate and even create legitimate institutions to capture them in instrumental terms and then take advantage of them to co-opt state decision-making bodies at the local or even central level. In view of this situation and its magnitude, it should be noted that it is not simply a matter of the influence of subjects outside the public administration who have a monetary interest, but of a systematic plan that seeks to permeate decision-making spheres so high that they generate consequences that affect the entire social order. Likewise, the subjects and structures that participate in this strategy no longer permeate only the individual ethical sphere, but alter the very duties of the public function, collective interests, and social morality, which is why this co-optation ceases to be a problem that occupies only the sphere of public administration and becomes a case of "normative illegality".^[18]

In this context, it is possible to affirm, as Suárez, Jabbaz and Isuani^[19] have pointed out, that there may exist a system of institutionalized corruption in which there are structures and processes that have been installed in society as ways of continuously achieving some particular benefits, establishing a "social permissiveness" with the typical and generalized idea of "everybody does it".^[20]

This permissive and somehow complicit attitude has allowed macro criminal structures that were previously counterparts of the State's coercive apparatus, to create alliances giving the message that public service is a kind of market where you can enter for the right price. This is how the capture of the State diversifies the subjects that are immersed in the corrupt relationship, since mafias, illegal cartels, organized criminal organizations, paramilitary and subversive groups and legal groups such as political parties, traders, politicians, businessmen and transnational corporations can be part of it.^[21] These criminal subjects have been denominated by the doctrine as "interest groups".^[22]

It is because of this complex macro structure that the effects of the co-optation of the public function have a plurality of damages of different natures, which makes it imperative to identify their depth, not only to prevent them, but also to make visible their multidimensional effects and recognize the relevant responsibilities, including that of the State.

As mentioned above, corruption creates highly complex harmful repercussions. First, because of its invisibility or difficult perception, which is also related to the high permissiveness of society in the face of corrupt acts, and second, because being immersed in the regulation of norms, it involves the entire system, creating a vicious cycle.

Corruption has generally been understood as a phenomenon that affects only the economic dimensions of a society's values,^[25] however, as Bautista (2005) states, corruption has costs that impact the political, economic, social and cultural dimensions of a community.^[26]

This is important to point out, because traditionally it has been seen how the detriment of the public coffers is used as an excuse to justify the regressiveness of the economic and social development of a country. In this sense, Shang-Jin Wei states:

“la corrupción hace disminuir el crecimiento económico, sesga el sistema fiscal para favorecer a los ricos y bien relacionados, reduce la eficacia del establecimiento de objetivos en los programas sociales, sesga las políticas del gobierno favoreciendo la inequidad en la propiedad de los bienes disponibles, hace disminuir el gasto social, reduce el acceso a la educación de los pobres e incrementa el riesgo en las inversiones de los pobres”.^[27]

These damages, in particular, are the result of alterations at high levels of the State's decision-making powers, since corruption has an impact on the country's economy, directly altering the budgets of territorial and administrative entities, unbalancing trade, driving changes in monetary policy and creating a fiscal deficit that is difficult to overcome.

On the other hand, corruption in public administration has significant social impacts. These effects are manifested in the increase of inequality in the indexes (GINI), diverting the effective destination of public funds, and increasing bureaucracy and commercializing public service.

In this sense, Ackerman highlights among many effects, some specific social damages, such as the structural impossibility for the poor to receive essential public services (social security, health, education), increase in taxes and fees to acquire these services, violent imbalances in the market for small producers, among others.^[28] This ultimately manifests itself in the practical impossibility of overcoming poverty and high inequality in a country.

On the cultural side, the "everybody does it" attitude and the permissiveness mentioned in the previous chapter generate perverse attitudes of indifference. These attitudes alter the ethical values of the community, creating a generalized distrust, and the belief that corruption is a permanent problem that is impossible to combat.^[29]

Perhaps the most invisible and serious damage caused by corruption is the political damage. This damage causes the social pact to lose strength and the entire state establishment to lose all legitimacy. Similarly, they cause negative effects of violence, creating a Hobbesian state of nature.^[30]

In the same aspect, there are the damages to the fundamental principles of the rule of law, in the first place, the democratic principle loses all validity, a clear example of this is a buying and selling of votes. Secondly, we can observe the frustration of any expectation of governability, and any impulse to act under legality. Bautista concludes that:

(...) en lo político los gobiernos pierden autoridad, incluso la soberanía, al llegar a convertirse en simples administradores de sucursales, agencias u oficinas de comercio de las grandes empresas transnacionales. Al ser incapaces de gobernar brotan los síntomas de ingobernabilidad. Gobiernos con estas características son usados desde el exterior mientras que en el interior los hombres que ocupan estos cargos han dejado de ser los grandes estadistas de antaño para convertirse en gerentes o encargados quienes solo administran pero no deciden aunque lo hagan con eficacia.^[31]

Thus, it can be said that there is a set of common damages in the traditional levels of corruption in public administration, these damages have a great complexity and the way to repair them will vary with their nature. This set of damages is found at the primary levels of the corrupt act and its repercussions are observed in the close circles of political, social and cultural relations of the administration. An example of this may be corruption arising from local public administration contracting, or the illegal failure of administrative authorities to comply with a rule, say, bribery to avoid a traffic ticket.

Therefore, we can highlight a first dimension of the damages resulting from corruption that I will call relative and occasional level, alluding to the damages generated in the short term and that generate their main effects in the close circles of the corrupt relationship. In this type of damage, liability is more evident in public officials as individuals, than in the state as a legal person under public law, subject of rights and obligations.

Damages occurring in the relative and occasional dimension, can be of all kinds (cultural, economic, social and political) but have a smaller coverage due to the number of people potentially violated. In this relative and occasional dimension we can find, for example, the conducts of undue celebration of contracts, peculation of a certain amount, bribery at low levels of the administration and prevarication in minor judicial conflicts.

However, when the levels of corruption are higher, the damages are more complex and affect more people over a prolonged period of time. This is why I will now investigate the damages that occur from the corrupt capture of the State, as a macro representation of corruption in public administration.

Corrupt acts, regardless of their type or dimension, have highly damaging consequences for a society founded on the rule of law. Thus, what could distinguish one corrupt act from another is the consequence of its commission, since in those that are recognized by anti-corruption measures as corrupt acts, they could be prosecuted, but in those that are not, there would be no such possibility, generating an inevitable feeling of impunity.

This symptom of impunity is what generates the corrupt capture of the State, since in these dimensions of corruption, the methods employed are so innovative and invisible that their existence seems impossible.

Corruption impacts on such high levels of administration that, as Alan Doig and Stephen Riley put it, it contributes to political instability, arbitrary intervention of government economic and fiscal institutions and the provision of public services.^[32]

The damages resulting from these levels of corruption, in turn, will be called the generalized and systematic dimension. The damages of this dimension are a consequence of the co-opted reconfiguration of the State,^[33] and include damages that impact society in general, causing permanent detrimental effects. This co-optation represents a level of corruption that produces the chain of indifference-corruption mentioned at the beginning of this dissertation, making it autopoietic and resistant to the different state measures to prevent and counteract it. As stated by Cartier:

“con el auge de la corrupción social y su institucionalización no sólo se agravan las implicaciones y efectos negativos sobre el sistema social sino que se amplían las instancias de afectación (i) morales (el malestar producto de la apatía), (ii) políticos (el cuestionamiento de la democracia parlamentaria y la avanzada del populismo o de la extrema derecha), (iii) económicos (el despilfarro de los fondos públicos y el desarrollo de rentas parasitarias, costosas para las empresas excluidas de las redes y para los contribuyentes) y (iv) sociales (desigualdad en el tratamiento de los actores).^[34]

The impact of the generalized and systematic dimension of corruption differs from the relative and occasional one, in that it is exploited by different subjects to reestablish the institutional framework for the illegal appropriation of resources, incursion into democratic scenarios, and redirection of the public budget. These are essential values for the normal development of the administrative activity. ^[35] That is to say, the generalized and systematic dimension, co-opts such basic principles of our society, that it spreads to all the others, allowing precisely the poisoning of all the products that are derived from its co-opted action (norms, public policies, administrative acts, etc.): (norms, public policies, administrative acts).^[36]

In the face of this Garay^[37] has highlighted what he calls: the instrumental capture of political parties: from the complexification of State Capture to the Coopted Reconfiguration of the State. In this category he outlines what would be the systematic dimension of corruption, identifying that the capture of political parties as instruments to reach power is a programmatic plan in which interest groups manage to permeate the State at the moment of its consolidation. This complexization of state capture can have different effects over time and its criminal exposure can change depending on its level.

Thus, bribery and violent coercion of political candidates and voters has effects in the "short term and has a high criminal exposure", campaign financing and crimes against suffrage is of "medium term and medium criminal exposure" and the creation of political parties has "long term effects and has a low criminal exposure".^[38]

Based on the above, we can directly relate the effects of the corrupt capture of the State and its subsequent co-opted reconfiguration, in the generalized and systematic dimension of corruption in public administration. This dimension presents us with a panorama in which acts of corruption are not simply isolated acts that have poly-lesive effects but are limited to a specific space or sphere. Rather, they are a series of generalized effects that compromise different types of rights. An example of the damage caused by this capture can be found in the Colombian armed conflict, in which paramilitary groups permeated different spheres of power with the aim of refounding the State,^[39] reconfiguring it and taking control of a large part of its activity.^[40] In this particular case, armed groups achieved economic and military advantages and political^[41] co-optation that violated the rights of thousands of victims of the armed conflict.

So far, we have been able to recognize two dimensions of harm that affect thousands of people in different countries and affect their institutions, compromising the effectiveness of the law and its application.^[42] Although these damages are typified in the framework of domestic legal systems, we can also identify a perspective that includes the generalized and systematic dimension of international law; rights that are violated by acts of corruption, generating responsibility.

Having already analyzed the dimensions of the damage caused by corrupt acts, it is undeniable that they are related to serious human rights violations. Thus, the question arises: Is the corrupt capture of the State a harm to human rights?

To analyze this, we must look at the unlawfulness of the harm. In other words, we must determine the general obligations to respect and guarantee human rights that a State has ratified. Then, it will be possible to analyze if the State effectively violates the IHRL through the acts of its captured administration.

To be more precise and find an accurate conclusion about the violation of a certain human right, a case study would have to be made; however, this dissertation does not seek to examine the scope of a specific right, but rather a general analysis of how large-scale corruption (corrupt capture of the State) can violate human rights.

Within the present analysis we will take the distinction of Bascuñám, Bascur e Rojas (2014) that separates: "corrupt practices that directly violate a human right, and corrupt practices that lead to human rights violations, but which, considered in themselves, do not violate a right".^[43]

In this way we will focus on the first distinction concerning practices that directly violate a human right. Therefore, it should be noted that the State's obligations under international law are threefold: the obligation to respect, the obligation to protect and the obligation to guarantee human rights. These obligations can be breached at any time during the occurrence of a corrupt act, for example: the capture of the State by an armed group would undoubtedly violate these three obligations.^[44]

C. Maldonado^[45] cited by Castañeda proposes three ways in which the administration, by action or omission, violates human rights through corruption:

“La primera forma es la exclusión en la que, especialmente en gobiernos republicanos, se elige a unos cuantos para que actúen en representación de la mayoría generando supresión de mecanismos de control ciudadano y ocultamiento en la toma y justificación de decisiones. La segunda es la ausencia de oposición política la cual permite la adquisición ilegal de contratos, venta ficticia de bienes, concesión de puestos públicos y maniobras secretas para perpetuarse en el poder, entre otros. Finalmente, la impunidad, ya que el crimen organizado, narcotráfico, corrupción y violaciones a derechos humanos son posibles debido a la inoperancia de la justicia, que a través de coacción o incentivos manipula la actuación de la justicia a favor de determinados intereses.”^[46]

These are examples of how structured and programmatic corruption schemes can be considered direct violations of human rights, in the same sense we can identify in general terms how State capture violates specific rights enshrined in international human rights instruments, for this dissertation we will take two rights, one recognized in the American Convention on Human Rights, and another enshrined in the Protocol of San Salvador as an example to illustrate the relationship.

The right to political participation enshrined in Article 23 of the American Convention on Human Rights. In the event of co-optation of institutional bodies, it could bring harm in two ways: first, the abuse of power through arbitrarily imposed positions, and second, the right of access to public positions that all citizens have based on the universal principle of equality.^[47]

Also, the right to education referred to in article 26 of the American Convention on Human Rights as a promotional right and in article 13 of the "Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights" (Protocol of San Salvador). In this sense, corruption affects education to the extent that the embezzlement of funds allocated for this purpose could deny effective access to education, thus directly violating the right. At the same time, it also indirectly affects the right when the conditions in which people study are hindered. In other words, corruption in all its magnitude can violate the principles of accessibility, adaptability and acceptability that govern it.^[48]

Based on the above analysis, the clear relationship between the corrupt capture of the State and the violation of human rights is shown, these evident violations are the representation of one of the damages of the generalized and systematic dimension of the capture of the State. In this way, we can observe the poly-offensive character of large-scale corruption, highlighting the importance of recognizing not only the plurality of actors involved in these damages, but also the plurality of perpetrators to be held accountable.^[49]

Within the corrupt capture of the State, as mentioned above, there is a plurality of subjects belonging to the public and private sector. For this dissertation, the performance of the State will be highlighted, establishing the grounds from the philosophy of responsibility for which it must be declared responsible for the widespread and systematic dimension of the damages resulting from the corrupt capture of the state, including serious violations of human rights.

The connection between human rights and acts of corruption lies in their cause-effect dependence, which is why the State could be included in the nexus by action and omission, since in any case it is the State that must prevent the occurrence of the damage.^[50][51]

In the face of this causal nexus, the doctrine has identified at least three relationships in which the corrupt actions of the State violate or help to violate human rights. Thus, the International Council on Human Rights Policy establishes three types of violations:

• Direct violations: corruption can be linked to the corrupt actions of the State, when the captured State is used to obtain a benefit, ^[52] regardless of the violation of rights it represents. For example, in the case of political co-optation of a public office, not only political rights are directly violated, but also labor rights, equality and even human dignity.

• Indirect violations: this type of violation is posed as a sine qua non condition,^[53] that is, as a necessary condition to perpetuate the right. Thus, corruption can be an essential factor within a set of factors "contributing to a chain of events that eventually leads to the violation of a right".^[54] This is the case, for example. Violations to the effective provision of health and education services, given the lack of resources, the accessibility of these services would drop significantly, violating the right of many people.

• Remote violations: Faced with this type of violations, says the author, is when the corrupt action of the state is one factor among a set of factors.^[55]In turn, another sector of the doctrine explains this same type of violations under the title of "cumulative causation".^[56]

In the same way, Peters establishes certain conditions that must exist to recognize this causality.^[57] In this way he establishes that there must be necessity between the corrupt act and the violation of the right, secondly there must be immediacy,^[58] between the antijuridical normative breach and the damage.^[59]

In this way different paths of factual imputation are traced by which the state would have to respond for corrupt acts in their actions are generated. Having made this clear, I will proceed to discuss the elements within the philosophy of liability that are related to the basis of the duty to repair damages. ^[60]

After elucidating certain elements on causality, the following question arises Should the state be liable for the acts of the agents or institutions that compose it? Faced with this, Peters states that normally the corrupt conduct of agents could be attributed to the State by applying the principles of liability since:

“El funcionario utiliza su posición para llevar a cabo u omitir una medida que el funcionario no podría realizar como una persona privada, como otorgar una autorización o licencia, evitar procesos judiciales o imponer una multa.”^[61]

Thus, the violation of the duties of prevention and protection of the institutions of the legislative, executive and judicial branches of the State that fail to comply with the obligations,^[62] since the officials are endowed with an institutional veil that would not allow them to carry out their corrupt acts if they did not have it.

Therefore, it will be the failure with the service the legal title by which the State would respond for the damages resulting from its corrupt capture, since in the cases of Corrupt Capture there are usually fraudulent programmatic agreements, as stated by Libardo Rodriguez:

“debe tenerse en cuenta que en la responsabilidad por culpa, falta o falla del servicio, la culpa exigida se diferencia sustancialmente de la culpa del derecho común. En efecto, mientras esta es eminentemente subjetiva, es decir, imputable a un individuo, aquella puede ser una culpa o falla funcional, organiza o anónima, es decir atribuible a la administración y no necesariamente a un funcionario en particular”.^[63]

The second reason arises from the fact that in the modern State the administration is seen as a subject in which the State distributes competences and duties. In global administrative law there is a tendency that when there is a breach of legal norms with a damaging effect, the State must be held liable.^[64]

Based on the above elements it can be said that there is imputation of the State for the acts that its agents have maliciously performed, covered by the veil of its institutionality. We can highlight the theory of the nexus with the service that arises from the theory of the failure of service to explain this phenomenon. Regarding this theory Botero states that:

(…) para imputar responsabilidad por acción del agente es necesario, tener en cuenta los nexos con el servicio, es decir, la relación agente-servicio a través de sus variantes temporales, instrumentales o especiales; o además el grado de influencia que en la producción del daño tuvo el servicio (…).^[65]

In this way it is possible to demonstrate through the position of subjective liability for failure and the theory of the nexus with the service, the foundations in the field of legal imputation with which the State would respond for the corrupt actions of its institutions and officials, and also for the damages resulting from its corrupt capture.

We can conclude from the above dissertation that there are legal and factual grounds for the State to respond for the damages caused by its corrupt actions. This analysis contributes to make the State's responsibility for acts of corruption that produce multidimensional damages and damages to human rights viable, reducing the feeling of impunity and elucidating the complexity of the problem, for its prevention and remedy.