COMMITTEE
OF EXPERTS OF THE FOLLOW-UP MECHANISM FOR THE IMPLEMENTATION OF THE
INTER-AMERICAN CONVENTION AGAINST CORRUPTION
QUESTIONNAIRE
OF THE STATE OF NICARAGUA ON PROVISIONS SELECTED BY THE COMMITTEE OF EXPERTS
FOR ANALYSIS WITHIN THE FRAMEWORK OF THE FIRST ROUND
Introduction
Nicaragua
is making major efforts to create a rule-of-law State and to surmount the
fragility of its institutions. To do this, one of its essential pillars, the
civil service, must have an appropriate legal framework, because achieving
rule of law requires that the principles in the Constitution be translated
into law; many of these principles still need to be developed and coordinated.
The
State has taken significant steps to that end with the preparation and entry
into force of a series of laws producing a new administrative structure for
the country, such as the following: Administrative Litigation Jurisdiction
Act, Government Contracting Act, Organic Law of the Office of the Attorney
General; Organic Law of the Office of the Prosecutor General of the Republic;
Law on the Organization, Competence, and Procedures of the Executive Branch
and its Regulations; and, as a result of the work of the National Integrity
Committee (CNI): Ethical Standards for Civil Servants in the Executive Branch,
and the Amendment to the Penal Code and an addition regarding criminalization
of new legal elements or acts of corruption committed by civil servants and
individuals against the government (illicit enrichment, influence peddling,
transnational bribery, embezzlement, fraud, and others). In addition, the
Civil Service and Administrative Career Service Bill and the Citizen
Participation Bill have been prepared for discussion and approval in the
National Assembly. Consultations are currently under way with the executive
branch and civil society on the preliminary Bill on Access to Information.
The
country, therefore, is undertaking an ambitious transformation of its
democratic institutions. The purpose of that process is to structure and
organize a constitutional rule-of-law State, the reason and purpose of which
is to make persons and the government abide by the Constitution and laws. It
is also intended to establish and guarantee a system of social, economic, and
political rights and public freedoms, according primacy to human dignity and
seeking to correct inequalities of all kinds, in accordance with the law. This
is all the result of a series of historical events and of citizen
participation, which vehemently demand that a new order be built around
non-confrontation; the final objective of that order is to achieve
democratization, pacification, the transformation of democratic institutions, transparency
in governance, economic modernization, and streamlining of the State, with
justice for as many people as possible.
I.
SUMMARY OF THE INFORMATION RECEIVED
The
following documents were used to analyze implementation of the provisions of
the Convention selected by the Committee of Experts of the Follow-Up Mechanism
for Implementation of the Inter-American Convention Against Corruption.
1.
Constitution of Nicaragua, published
in The Gazette, Official Bulletin No. 5 of January 9, 1987. Amendments thereto
were published in The Gazette, Official Bulletin Nos. 46 of March 6, 1990; 125
of July 5, 1995; and 13 of January 19, 2000.
2.
Law No. 411, Organic Law of the
Office of the Prosecutor General of the Republic, published in The
Gazette, Official Bulletin No. 244 of November 24, 2001.
3.
Decree-Law No. 86, Organic Law of
the Office of the Comptroller General of the Republic, published in The
Gazette, Official Bulletin No. 16 of September 22, 1979. It has been
amended through the following: Decree-Law Nos. 612, Amendment to the Law Establishing the
Office of the Comptroller General of the Republic, published in The Gazette, Official Bulletin No. 6 of January 10, 1981; 743,
Amendment to the Organic
Law of the Office of the Comptroller General of the Republic, published in The Gazette, Official Bulletin No. 149 of July 7, 1981; 1490,
Amendment to the Organic
Law of the Office of the Comptroller General of the Republic, published in The Gazette, Official Bulletin No. 161 of August 22, 1984; and 417,
Amendment to the Organic
Law of the Office of the Comptroller General of the Republic on the Control System for
Government and the People's Property Area, published
in The Gazette, Official Bulletin No.
240 of December 29, 1988.
4.
Technical Internal Control Standards for Government Control. June 15,
1995 publication of the Office of the Comptroller General of the Republic.
5.
Government Auditing Standards of Nicaragua. April 20, 2002
publication of the Office of the Comptroller General of the Republic.
6.
Decree
No. 83-99 Creating the Monitoring and Evaluation Committees, published
in The Gazette, Official Bulletin No. 143, of July 28, 1999.
7.
Decree-Law No. 297, Penal Code of the Republic of Nicaragua,
published in The Gazette, Official Bulletin No. 96 of May 3, 1974. It has been
amended through the following: Law Nos.
259, Amendment of Chapters Eight and Nine and Articles 386, 389, 395, and 397 of
Chapter Ten, Title VIII, Crimes against Persons, published in The Gazette, Official Bulletin No. 222 of
October 5, 1973; 67, Law Amending Article 494 of the
Penal Code, published in The Gazette, Official Bulletin No. 245 of
December 27, 1989; 150, Law Amending the Penal Code, published in The Gazette, Official
Bulletin No. 174 of September 9, 1992; 230, Law Amending and Supplementing the Penal Code, published
in The Gazette, Official Bulletin No. 191 of October 9, 1996; 419,
Law Amending and Supplementing the Penal Code of the Republic of Nicaragua, published
in The Gazette, Official Bulletin No. 121 of June 8, 2002.
7.
Law No. 419 Amending the Penal Code
of the Republic of Nicaragua, published in The Gazette, Official Bulletin No. 121
of June 28, 2002.
8.
Law Amending Decree No. 579, Law No. 11, published in The Gazette,
Official Bulletin No. 217 of November 12, 1985.
9.
Law
No. 438 on Civil Servant Probity, published in The Gazette, Official
Bulletin No. 147 of August 7, 2002.
10.
Decree No. 124-99, Ethical
Standards for Civil Servants in the Executive Branch, published in The
Gazette, Official Bulletin No. 236 of December 10, 1999.
11.
Decree No. 67-2002 Establishing
the Office of Public Ethics, published in The Gazette, Official Bulletin
No. 142 of July 30, 2002.
12.
Law No. 290 on the
Organization, Competence, and Procedures of the Executive Branch and its
Regulations, published in The Gazette, Official Bulletin No. 102 of June
3, 1998.
13.
Law No. 323 on Government
Contracting, published in The Gazette, Official Bulletin Nos. 1 and 2 of
January 3 and 4, 2000.
14.
Law No. 435 Amending the 2002
General Budget Act of the Republic, published in The Gazette, Official
Bulletin No. 147 of August 7, 2002.
15.
2002
Standards and Procedures for Budget Execution and Control, published
by the General Budget Directorate of the Ministry of Finance and Public Credit
on January 7, 2002.
16.
Executive Decree No. 70-2000,
Extradition Treaty between the Republic of Nicaragua and the Kingdom of Spain,
published in The Gazette, Official Bulletin No. 161 of August 25, 2000.
17.
National Assembly (N.A.) Decree
No. 1888, Extradition Treaty between the Republic of Nicaragua and the United
Mexican States, published in The Gazette, Official Bulletin No. 64 of
April 2, 1998.
18.
N.A. Decree No. 1884, Extradition
Treaty between the Republic of Nicaragua and the Republic of Chile, published
in The Gazette, Official Bulletin No. 63 of April 1, 1998.
19.
N.A. Decree No. 1902, Approval of
the Mutual Legal Assistance Treaty in Criminal Matters among the Republics of
Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama, published
in The Gazette, Official Bulletin No. 116 of June 1998.
20.
Law No. 177 on Narcotic,
Psychotropic, and Controlled Substances, published in The Gazette,
Official Bulletin No. 138 of July 25, 1994. This Law was amended through Law
No. 285 Amending and Supplementing Law No. 177 on Narcotic, Psychotropic, and
Controlled Substances, published in The Gazette, Official Bulletin Nos. 69
and 70 of April 15 and 16, 1999, respectively.
21.
Law No. 261, The Municipios Act, published
in The Gazette, Official Bulletin No. 162 of August 1997.
22.
Executive Decree No. 52-97,
Regulations for the Municipios Act, published in The Gazette, Official
Bulletin No. 171 of September 8, 1997. It was amended through the following:
Decree Nos. 34-2000, published in The Gazette, Official Bulletin No. 81 of May
2, 2000; and 48-2000, published in The Gazette, Official Bulletin, No. 107 of
June 7, 2000.
23.
Executive
Decree No. 15-99 Establishing the National Economic and Social Planning
Council, published in The Gazette, Official Bulletin No. 34 of
February 18, 1999.
24.
Decree
No. 17-2001 Establishing the National Citizen Participation Commission,
published in The Gazette, Official Bulletin No. 23 of February 1, 2001.
25.
Citizen
Legal Initiative Act, published in The Gazette, Official Bulletin No. 218
of November 14, 1997.
II.
ANALYSIS BY THE STATE PARTY OF IMPLEMENTATION OF THE SELECTED
PROVISIONS
1.
Standards of conduct and enforcement mechanisms (Article III, 1 and 2)
CHAPTER
ONE
MEASURES
AND MECHANISMS REGARDING STANDARDS OF CONDUCT FOR THE CORRECT, HONORABLE, AND
PROPER FULFILLMENT OF PUBLIC FUNCTIONS (ARTICLE III, 1 AND 2 OF THE
CONVENTION)
Article III, paragraphs 1
and 2 of the Inter-American Convention Against Corruption read as follows:
- Standards
of conduct for the correct, honorable, and proper fulfillment of public
functions. These standards shall be intended to prevent conflicts of
interest and ensure the proper conservation and use of resources entrusted
to government officials in the performance of their functions. These
standards shall also establish measures and systems requiring government
officials to report to appropriate authorities acts of corruption in the
performance of public functions. Such measures should help preserve the
public's confidence in the integrity of public servants and government
processes.
- Mechanisms
to enforce these standards of conduct.
Article III: Preventive
Measures
1.
General standards of conduct and
mechanisms
a)
Are there standards of conduct in your country for the
correct, honorable and adequate fulfillment of public functions? If so,
briefly describe them and list and attach a copy of the related provisions and
documents.
The Constitution states
that “public functions must be exercised in the interests of the people”
and that officials in the four branches of government are accountable to the
people for “correct performance of their functions and must inform them of
their work and official activities...(and)…must address and listen to their
problems and seek to resolve them” (Art. 131 of the Constitution). The State
also assumes liability for injury “to individuals’ property, rights, and
interests” as a result of the actions or omissions of officials in the
exercise of their position. In this regard, the Constitution warns that public
officials or government employees “are personally responsible for violations
of the Constitution, lack of administrative probity, and any other offense or
omission committed in the performance of their functions.” Moreover, they
are accountable to the State for “any damage they cause through abuse,
negligence, and acts of omission in the exercise of their position” (Art. 131
of the Constitution).
As
a result of this constitutional framework on the nature and accountability of
civil service, the national legal system has standards of conduct for the
correct, honorable, and adequate fulfillment of public functions. Accordingly,
the Constitution stipulates that “no position can confer upon its holder
more functions that those assigned by the Constitution and laws” (Art. 130)
and that all government officials must “disclose their property prior to
assuming a post and after leaving it” (Art. 130).
To
avoid conflicts of interest, the Constitution states that civil servants in
any branch of government cannot “obtain any concessions from the State”;
furthermore they are not allowed to act as “representatives or agents for
national or foreign public or private enterprises in contracting with the
government.” The Constitution establishes the following two-fold penalty for
violation of this provision: first, “it cancels the concessions or
advantages obtained” and second, it calls for “loss of status as a
representative and loss of the position" (Art. 130 of the Constitution;
Arts. 8, 14, and 15, Probity Act). Similarly, the Constitution prohibits
authorities from “awarding appointments to close relatives” and bars
executives from appointing persons within “four degrees of consanguinity and
two degrees of affinity” (Art. 130).
The
executive branch issued a Decree (124/1999) on Ethical Standards for Civil
Servants in the Executive Branch. Its purpose is to establish ethical
standards for civil servants in the different State ministries, decentralized
and deconcentrated entities, and generally all those referenced in the Law on
the Organization, Competence, and Procedures of the Executive Branch (Law No.
290/1999). This Decree also establishes restrictions on public functions, as
well as duties, prohibitions, and incompatibilities in the exercise of such
functions.
Civil
servants must act in accordance with the principles of probity, transparency,
responsibility, impartiality, and decorum.
They must comply with and enforce the legal order corresponding to the
nature of their functions, act diligently in the service entrusted to them,
rationally use resources in the performance of their work, exercise their
functions based on the common good and the furtherance of citizens’
interests, resolve citizen requests and demands in accordance with the law,
and protect the assets assigned to them. They must also report criminal
conduct or omissions of which they are aware to the competent authority,
present a declaration of probity in the appropriate cases, and receive only
their government salary (Arts. 2, 6, and 7, Probity Act; Arts. 1, 2, 4, 5, and
6, Ethical Standards for Civil Servants in the Executive Branch).
It
further establishes that civil servants must refrain from receiving donations,
gifts, monetary commissions, or commissions in kind from any person who has an
interest in the outcome of their conduct. They must also refrain from using
public functions to benefit any political party. Civil servants are barred
from involving third parties in the regular exercise of their functions and
from acquiring personally or through another person goods that are sold by
their institution or for arranging for third persons to acquire such property.
Moreover, they can not personally, or through a third party, provide advising
on matters related to their position (Arts. 8, 13, 14, and 15, Probity Act;
Arts. 173, 175, and 176, Organic Law of the Office of the Comptroller General
of the Republic; Art. 395, Penal Code; Arts. 13 and 19, Organic Law of the
Office of the Prosecutor General of the Republic).
The
Decree does not have coercive force or establish sanctions for the violation
of its standards; it is preventive in nature and provides civil servants with
a framework of provisions advising them how they must act in the exercise of
their functions. However, violations of an ethical standard can, depending on
their nature and content, constitute an offense. Moreover, certain behaviors
result in civil or administrative liability.
b)
Are
there mechanisms to enforce compliance with the above standards of conduct? If
so, briefly describe them and list and attach a copy of the related provisions
and documents.
The
Office of the Comptroller General of the Republic (governing body) monitors
compliance with the Civil Servant Probity Act, general laws, and regulatory
standards governing its installation, operation, functioning, transformation,
and dissolution (Arts. 24, 25, 26, and 27, Probity Act). The Office uses
audits as a control mechanism to ensure compliance with the standards of
conduct. It establishes a single accountancy model that the State must
implement (Arts. 1, 2, 3, 4, 5, 10, and 43, Organic Law of the Office of the
Comptroller).
In
this case, the Office of the Comptroller General of the Republic finds the
official who is responsible for financial administration systems or for
protecting financial material resources to be directly responsible, when
appropriate. The Act authorizes the control organ to find public officials
investigated for acts detrimental to the assets of the State to have
administrative liability or civil liability and to determine whether or not
there is “presumption of a crime.” The organ also has the authority to
refer said actions to the courts, to determine whether or not there is
criminal liability (Arts. 173, 175 and 176, Organic Law of the Office of the
Comptroller General of the Republic; Art. 156, Penal Code; Arts. 13, 14, and
15, Probity Act). According to the Constitution, the Office of the Comptroller
“must release (principle of disclosure) the results of its investigations
and, when they presume criminal liability, must refer its investigation to the
courts; failure to do so would make it an accessory after the fact to offenses
the investigated persons are later found to have committed” (Art. 156).
The
Organic Law of the Office of the Comptroller General of the Republic sets
forth the procedure to be followed in the Office’s investigations into acts
of corruption, as well as the resources that can be used by the parties once
the Office has issued its decision.
Recently, the executive
branch created the Office of Public Ethics to promote transparency and
effectiveness in the administration of its goods and resources and to fight
corruption, while fostering honesty, good citizenship, and ethics through
education and awareness and dissemination of the standards of conduct for
public officials. Its purpose is to regulate the integrity, diligence, and
influence of civil or military officials in the performance of their
positions, so that State property is allocated in an orderly manner for the
purposes of the government of the Republic (Decree No. 67-2002 Establishing
the Office of Public Ethics).
c)
Briefly
state the results that have been obtained in implementing the above standards
and mechanisms, attaching the pertinent statistical information, if available.
Data provided by the Office
of the Comptroller General of the Republic (Annex I) reveal that, in 2000, 104
applications to tender were received from State institutions, waiving the
procedures in the Contracting Act; 66 were authorized and 33 denied; there
were 4 motions to declare a decision void and one petition to declare a
decision void. In 2001, 82 applications to tender were received for direct
contracting, bypassing the procedures in the Contracting Act; of those, 57
were authorized and 19 denied; there were nine motions to declare a decision
void and three petitions to declare a decision void. In 2002, 64 requests were
received; 48 were authorized and 12 denied; there was one motion to declare a
decision void and three petitions to declare a decision void. In the 328
audits conducted by the Office of the Comptroller, 35 sanctions were imposed
(fines and dismissal).
2.
Conflicts of interests
a)
Are
there standards of conduct in your country regarding the prevention of
conflicts of interest in the performance of public functions? If yes, briefly
describe them, indicating aspects such as to whom they apply and the concept
on which they are based, and list and attach a copy of the related provisions
and documents.
The
Constitution sets forth standards aimed at preventing conflicts of interest in
the exercise of public functions. Thus, it states that public officials in any
branch of government cannot “obtain any concessions from the State”; they
are also barred from acting as “representatives or agents for national or
foreign public or private enterprises in contracting with the government.”
The Constitution establishes the following two-fold penalty for
violations of this provision: first, “it cancels the concessions or
advantages obtained” and second, it calls for “loss of status as a
representative and loss of the position" (Art. 130 of the Constitution;
Arts. 8, 14, and 15, Probity Act). Similarly, the Constitution prohibits
authorities from “awarding appointments to close relatives” and bars
executives from appointing persons within “four degrees of consanguinity and
two degrees of affinity” (Art. 130).
In
secondary legislation, the Government Contracting and Procurement Act
articulates and develops on the constitutional standards to prevent such
conflicts. The purpose of that Act is to establish general standards and
procedures regulating the procurement of goods, hiring of consultants, and any
other service carried out by public sector organs or entities. The sphere of
application for this is the public sector, autonomous and decentralized
entities, municipios, universities that receive funding from the State, and
enterprises in which the State has a stake. The Act sets forth the basic
principles that must be adhered to in contracting, such as efficiency,
disclosure and transparency, equality, and fair competition; it also
establishes the procedures for procuring goods through competitive bidding
(Arts. 3, 12, and 13, Government Contracting Act; Arts. 173, 175, and 176,
Organic Law of the Office of the Comptroller General of the Republic; Art.
130, Constitution; and Arts. 13, 14, and 15, Probity Act).
b)
Are
there mechanisms to enforce compliance with the above standards of conduct? If
so, briefly describe them and list and attach a copy of the related provisions
and documents.
The mechanisms to enforce
compliance with the above standards of conduct are set forth in the Government
Contracting Act. That Act states that the following persons cannot be bidders
to the State: public officials who have a commercial or personal interest,
persons who participated in designing the bid call, their family members up to
the third degree of consanguinity, and their spouses. Likewise public
officials are responsible for monitoring and safeguarding State property and
are prohibited from using their positions for their own benefit or that of
third parties (Arts. 12 and 13, Government Contracting Act; Arts. 2, 5, 7, and
8, Civil Servant Probity Act).
The Government Contracting
Act and the Civil Servant Probity Act contain sanctions for public officials
(and individuals) who violate these mechanisms; these administrative sanctions
do not preclude any resulting civil and criminal sanctions (Arts. 84, 85, 86,
87, 88, 89, and 90, Government Contracting Act; Arts. 13, 14, and 15, Civil
Servant Probity Act; Arts. 173, 174, and 175, Organic Law of the Office of the
Comptroller General of the Republic).
c)
Briefly
state the results that have been obtained in implementing the above standards
and mechanisms, attaching the pertinent statistical information, if available.
Data provided by the Office
of the Comptroller General of the Republic (Annex I) reveal that in 2000, 158
audits were conducted, of which 87 were financial and compliance audits, 61
were special audits, and 10 were internal control assessments. In all, 81 were
executed with Office resources and 77 by private firms; they found
administrative liability in 27 cases, presumed criminal liability in 8, and
civil liability in 25.
In 2001, 170 audits were
conducted, of which 71 were financial and compliance audits, 87 were special
audits, and 12 were internal control assessments; 106 were executed with
Office resources and 64 by private firms; they found administrative liability
in 39 cases, criminal liability in 16, and civil liability in 16, affecting a
total of 169 officials; five sanctions were imposed, two sanctions were not
applied, six fines were levied, and four persons were dismissed.
In
2002, administrative liability has been found in 19 cases, criminal liability
in 13, and civil liability in 13, affecting a total of 184 persons; 13 sanctions
have been imposed,
five sanctions
have not been applied,
ten fines
have been levied, and one person has been dismissed.
3.
Conservation and proper use of resources entrusted to public officials
in the performance of their functions
a)
Are
there standards of conduct in your country that govern the conservation and
proper use of resources entrusted to public officials in the performance of
their functions? If yes, briefly describe them, indicating aspects such as to
whom they apply and whether there are exceptions, and list and attach a copy
of the related provisions and documents.
The Office of the
Comptroller General of the Republic is responsible for the standards of
conduct aimed at ensuring the conservation and proper use of resources
entrusted to public officials in the performance of their functions. Its
regulations stipulate that each State institution is responsible for creating
its own internal control policies, which shall not preclude the Office of the
Comptroller’s authority to issue technical internal control and government
auditing standards (Arts. 38, 40, 43, 45, 49, 50, 51, 52, 53, 63, 64, 65, 76,
80, 85, and 86, Organic Law of the Office of the Comptroller).
The
technical internal control standards establish professional criteria to be
observed in the different financial administration, operational, and program
and project areas; they are mandatory basic guidelines of general application;
their purpose is to establish an appropriate separation of the functions of
civil servants in each institution. Each entity is responsible for
establishing and maintaining an internal control structure that provides
reasonable security in the standards and procedures formally established in
each institution’s transactions, such as: assets, liabilities, revenue,
expenditures, procurement of goods and services, issuance of checks, cash
control, and inventory control, among others (Technical internal control
standards; Arts. 3, 5, 7, 9, 10, and 35, Organic Law of the Office of the
Comptroller General of the Republic).
Government
audits are conducted based on the government auditing standards. They consist
of an objective, systematic examination of the financial and administrative
operations of each entity and agency in the public sector, for the purpose of
verifying and checking compliance with the legal provisions on material and
financial resources, so that they are administered correctly, in order to
ensure effective subsequent control (Arts. 38, 40, 43, 45, and 49, Organic Law
of the Office of the Comptroller General of the Republic).
The
purpose of the government control performed by the Office of the Comptroller
General is to stimulate the administrative activities of the entities and
agencies subject to control; establish reliable internal control; provide
civil servants with an appropriate environment that strengthens their morality
and integrity; enhance productivity; protect public resources; increase
efficiency, effectiveness, and economy in government operations and use of
government resources; promote compliance with the pertinent legal provisions,
standards, and policies; and facilitate achievement of the programmed goals
and objectives (Arts. 3, 5, 7, 9, 10, and 35, Organic Law of the Office of the
Comptroller General of the Republic; Art. 130, Constitution; Art. 3, 5, 8, 13,
14, and 15, Civil Servant Probity Act; Arts. 5, 6, and 7,
Government Contracting Act).
Budget
Execution and Control Standards and Procedures are issued annually by the
Ministry of Finance and Public Credit. All units in the central government are
subject to the provisions of those standards. They establish the
responsibilities for control of budget execution (2002 Budget Execution and
Control Standards and Procedures).
The
General Directorates of Budget and Government Accounting of the Ministry of
Finance and Public Credit, in turn, are responsible for supervising,
controlling, and evaluating budget execution by the agencies, based on
compliance with these standards (Arts. 3, 5, 7, 9, 10, and 35, Organic Law of
the Office of the Comptroller General of the Republic; Art. 130 Constitution).
The
institutions, through the financial administration divisions, are responsible
for the protection and conservation of the fixed assets entrusted to them for
the performance of their functions, for which they must be accountable. They
are also responsible for keeping an auxiliary record of all the
institution’s fixed assets. The financial administration offices submit a
monthly report to the General Directorate of Government Accounting on
increases and decreases in inventory, with the codes for the assets in
question (Art. 3, 5, 7, 9, 10, and 35, Organic Law of the Office of the
Comptroller General of the Republic; Art. 130, Constitution; 2002 Budget
Execution and Control Standards and Procedures; Art. 3, 5, 8, 13, 14, and 15,
Probity Act; Art. 5, 6, and 7, Government Contracting Act).
b)
Are
there mechanisms to enforce compliance with the above standards of conduct? If
so, briefly describe them and list and attach a copy of the related provisions
and documents.
Nicaragua has mechanisms to
enforce compliance with the above standards of conduct, which are the
responsibility of the Office of the Comptroller General of the Republic and of
the internal audit units of each institution.
Each institution must
establish its own internal control using as a guideline the technical internal
control standards for government control issued by the Office of the
Comptroller General of the Republic, in which they provide a course of action
for establishing methods to safeguard resources and ensure the veracity of
their financial, technical, and administrative data. Establishment of internal
control is mandatory (Technical internal control standards for government
control).
The organizational plan for
internal control must include procedures that make it possible to keep a
record of financial and administrative control of resources, obligations,
revenue, expenditures, and wealth, as well as public works projects and best
practices for fulfilling the functions of each unit and each civil servant.
State institutions must establish an internal audit unit (Organic Law of the
Office of the Comptroller General of the Republic, Arts. 38, 39, 40, 41, 42,
and 43).
The
internal audit unit is accountable to the institution’s senior authority for
the subsequent internal control. It is organized in accordance with the needs
and resources to be administered and must be consistent with the complexity
and volume of the respective transactions. The unit’s audits will be
performed in accordance with the government auditing standards issued by the
Office of the Comptroller General of the Republic. The internal audit is
subject to periodic evaluation by the Office of the Comptroller General. This
unit has the highest degree of independence and hence cannot participate in
administrative processes; it issues reports addressed to the institution’s
senior authority (Organic Law of the Office of the Comptroller General of the
Republic, Arts. 53, 54, 55, 56, 57, and 58).
c)
Briefly
state the results that have been obtained in implementing the above standards
and mechanisms, attaching the pertinent statistical information, if available.
No information is
available.
4.
Measures and systems requiring
public officials to report to appropriate authorities acts of corruption in
the performance of public functions of which they are aware
a)
Are there standards of conduct in your country
that establish measures and systems governing the requirement that public
officials report to appropriate authorities acts of corruption in public
office of which they are aware? If yes, briefly describe them, indicating
aspects such as to whom they apply and if there are any exceptions, and list
and attach a copy of the related provisions and documents.
The
Office of the Comptroller General of the Republic oversees the standards of
conduct that establish measures and systems governing the requirement that
public officials report to appropriate authorities acts of corruption in
public office of which they are aware.
The internal auditor of
each State institution is the person required to report acts of corruption.
Audits conducted by the internal auditor are to be consistent with accepted
government auditing standards and the technical government auditing policies
and standards issued by the Comptroller General (Arts. 56 and 59, Organic Law
of the Office of the Comptroller General of the Republic).
Audits
are performed in accordance with accepted government
auditing standards and the technical government auditing policies and
standards issued by the Comptroller General.
Audit and special examination reports are to be signed by the internal
auditor. When the internal auditors deem it necessary, they will report
directly to the Office of the Comptroller General any matter of importance of
which it should be aware (Arts. 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, and
63, Organic Law of the Office of the Comptroller General of the Republic).
When
the examination conducted by the internal audit units unveils facts that could
result in administrative liability, it will be noted in the pertinent report,
so as to enable the institution or its senior authority to impose the
pertinent sanctions (Organic Law of the Office of the Comptroller General of
the Republic, Arts. 38, 40, 43, 45, 49, 50, 51, 52, 53, 63, 64, 65, 76, 80,
85, and 86).
When
there is proof of criminal acts detrimental to economic interests or that
threaten the probity of economic management, the auditor will immediately
notify the senior authority and the Office of the Comptroller General and will
then compile all available evidence to pinpoint the proof; it will receive
support from the senior authority and can call witnesses and demand sworn
statements and the submittal of documents. An arrest warrant will be issued
for persons who refuse to comply (Arts. 2520, 2521, and 2526, Civil Code;
Arts. 38, 40, 43, 45, 49, 50, 51, 52, 53, 63, 64, 65, 76, 80, 85, and 86,
Organic Law of the Office of the Comptroller General of the Republic).
b)
Are
there mechanisms to enforce compliance with the above standards of conduct? If
so, briefly describe them and list and attach a copy of the related provisions
and documents.
The
mechanisms to enforce compliance with these standards of conduct –audits–
are the responsibility of the Office of the Comptroller General of the
Republic. These are classified into five categories: financial, operational,
special, selective, and internal audits.
·
Internal
audits are performed by the institutions’ authorities, through their
internal audit unit (Arts. 38, 39, 40, 41, 42, and 48, Organic Law of the
Office of the Comptroller).
·
Operational
audits consist of an examination and evaluation to determine the degree of
efficiency, effectiveness, and economy in planning, organization, management,
internal control, and use of resources and confirmation of observance of the
pertinent provisions (Arts. 38, 39, 40, 41, 42, 43, and 49, Organic Law of the
Office of the Comptroller).
·
Financial
audits examine records, business papers, documents, and other items that
support the financial statements, to formulate an opinion on the soundness
with which the results of financial operations are presented in the net worth,
to determine compliance with legal provisions (Arts. 38, 39, 40, 41, 42, 43,
and 50, Organic Law of the Office of the Comptroller).
·
Special
audits involve verifying, studying, and evaluating financial or administrative
transactions and operations after their execution, by applying engineering or
other related audit techniques and procedures or those from specific
disciplines in accordance with the matter under examination (Arts. 38, 39, 40,
41, 42, 43, and 51, Organic Law of the Office of the Comptroller).
·
Selective
review audits enable the auditor to limit the examination to part of the
operations in the event that the internal control assessment and selective
examination of operations found sufficient, pertinent evidence regarding the
reliability of those operations (Arts. 38, 39, 40, 41, 42, 43, and 52, Organic
Law of the Office of the Comptroller General of the Republic).
c)
Briefly
state the results that have been obtained in implementing the above standards
and mechanisms, attaching the pertinent statistical information, if available.
Data
from the Office of the Comptroller General of the Republic (Annex I) reveal
that citizen complaints result in audits for acts of corruption. From 2000
through June 2002, 184 complaints were received; of those only 11 have led to
audits.
2.
System for disclosing income, assets and liabilities (Article III, 4)
CHAPTER
TWO
SYSTEMS
FOR REGISTERING INCOME, ASSETS AND LIABILITIES
(ARTICLE
III, 4)
a)
Are there regulations in your country establishing
methods for registering the income, assets and liabilities of those who
perform public functions in certain posts as specified by law and, where
appropriate, for making such disclosures public? If yes, briefly describe
them, indicating aspects like to whom they apply and when the declaration must
be presented, the content of the declaration, and how the information given is
verified, accessed, and used. List and attach a copy of the related provisions
and documents.
These
regulations are set forth in the Civil Servant Probity Act. The purpose of
that Act is to regulate the probity of public officials, for the observance of
the principles of dignity, probity, equality, competence, and accountability.
It establishes how public officials are to fulfill their obligations to
monitor State resources and to present their declaration of probity to the
Office of the Comptroller General of the Republic, as well as to work with
that Office upon its request (Arts. 1, 5, 7, 8, 12, 13, 14, and 15, Probity
Act). The declarations must contain the property that makes up their personal
wealth (assets and liabilities) and that of their spouse, companion, and
children under their care. Finally, the declaration will contain a pledge from
the declarer that the content is true and that the property disclosed is the
only property declared in Nicaragua and abroad. The Office of the Comptroller
has the authority to verify the declaration of probity, by requesting
documents from the civil servant to support the declaration (Arts. 21 and 23,
Probity Act).
Declarations
of probity must be presented to the Office of the Comptroller General of the
Republic within 15 days of taking office and 15 days of leaving office.
Changes in declared personal wealth will result in sanctions and the
assessment of liability (Arts. 1, 5, 7, 8, 12, 13, 14, and 15, Probity Act).
b)
Briefly
state the results that have been obtained in implementing the above standards
and mechanisms, attaching the pertinent statistical information, if available.
According to the
information obtained from the Office of the Comptroller General of the
Republic (Annex I), in 2000 567 declarations of probity were received, and 150
were verified; in 2001, 3,366 declarations of probity were received, and 567
were verified; and as of June 2002, 895 declarations of probity had been
received and none verified. A breakdown of declarations of probity is
available by sector and institution from 2000 through June 2002.
c)
If
no
such regulations exist, briefly indicate how your State has considered the
applicability of measures within your own institutional systems to create,
maintain and strengthen the regulations that establish methods for registering
the income, assets and liabilities of those who perform public functions in
certain posts as specified by law and, where appropriate, for making such
disclosures public, in accordance with Article III (4) of the Convention.
3.
Oversight Bodies
CHAPTER
THREE
OVERSIGHT
BODIES
a)
Are there oversight bodies charged with the
responsibility of ensuring compliance with the provisions stated in Article
III (1), (2) and (4)? If yes, list and briefly describe their functions and
characteristics, and attach a copy of the related provisions and documents.
The
Constitution of Nicaragua stipulates that the Office of the Comptroller
General of the Republic is the governing body of the government control and
State resources and property supervision system. The Office of the Comptroller
is composed of five regular members and three alternates, elected by the
National Assembly to a five-year term, during which time they enjoy immunity
(Art. 154, Constitution).
The
Office of the Comptroller General of the Republic is an independent agency,
subject only to the Constitution and laws; it enjoys functional and
administrative autonomy. The Office of the Comptroller is composed of a Higher
Council of five members and three alternates. The Council elects a President
and Vice President from among its members by a majority of votes for a term of
one year, with the possibility of reelection (Art. 156, paragraphs one and
three, Constitution).
The
Organic Law of the Office of the Comptroller General of the Republic
establishes a system for controlling and evaluating government resources, and
it includes all the laws, regulations, standards, methods, and procedures
governing the activity of public institutions as regards control of their
management and the exercise of civil servants’ powers, authority, and
obligations (Arts. 1, 2, 3, 4, and 5, Organic Law of the Office of the
Comptroller General of the Republic).
The
purpose of the Office of the Comptroller General of the Republic is to
establish an internal control system in public institutions that is supported
through external control by the Office. To that end, it conducts independent,
objective examinations and makes recommendations for improving the operations
and activities of State institutions (Arts. 1, 2, 3, 4, and 5, Organic Law of
the Office of the Comptroller General of the Republic).
The
regulatory authority of the Office of the Comptroller General includes the
power to prepare technical internal control standards as a governmental
provision that will regulate internal control in public sector entities; for
the purposes of conducting government audits, it uses generally-accepted
government auditing standards known as GAGAS; they establish the nature of the
audit to be performed by this oversight body (Arts. 32, 33, 34, 35, 36, and
37, Organic Law of the Office of the Comptroller General of the Republic).
The
functions of the Office of the Comptroller General include performing
financial, operational, selective, and special audits in State institutions
and reviewing and evaluating the audits conducted by their internal audit
units. It also issues and updates regulations on government auditing,
government accounting, internal control, control of material and financial
resources, and other areas authorized by the Organic Law (Arts. 8, 9, 10, 11,
and 12, Organic
Law of the Office
of the Comptroller General of the Republic).
b)
Briefly
state the results that said oversight bodies have obtained in complying with
the previous functions, attaching the pertinent statistical information, if
available.
The
data provided by the Office of the Comptroller General of the Republic (Annex
1) indicate that this oversight body has been more efficient since it became a
collegiate body. Its productivity has risen qualitatively and quantitatively,
since it has established administrative, civil, and criminal liability in a
series of cases, which was not achieved by the previous regulatory entity.
Audits
with own resources rose; human resources increased; the production of audits
has accelerated; and terms of reference were prepared for external audits and
reviews of working papers. It has also reviewed internal audit reports to
examine whether they comply with government auditing standards, and two more
regional offices were created, bringing the total to five.
An
office for citizen complaints was created to encourage citizen collaboration
and involvement in the control and oversight executed by this institution.
The
following were also promoted: amendment of the Organic Law of the Office of
the Comptroller General of the Republic; standards for analyzing, controlling,
and monitoring government contracting, creating the corresponding office for
compliance with those standards; and updating of the government auditing
standards (GAGAS).
4.
Mechanisms to encourage participation by civil society and
nongovernmental organizations (Article III, 11)
CHAPTER
FOUR
PARTICIPATION
BY CIVIL SOCIETY (ARTICLE III, 11)
1.
General questions on the mechanisms for participation
a)
Are there in your country a legal framework and
mechanisms to encourage participation by civil society and non-governmental
organizations in efforts to prevent corruption? If so, briefly describe them
and list and attach a copy of the related provisions and documents.
The
Constitution, in accordance with the “principle of petition” (Art. 52) and
the civil and political right of establishing organizations and participating
in politics and state affairs, offers a broad range of possibilities by means
of which anomalies can be reported and constructive criticism can be presented
either individually or on a collective basis to state agencies, municipal
governments, and other authorities (Arts. 48, 49, 50, 51, 52, 53, 54, and 55
of the Constitution; and Arts. 40, 1, 3, 16, 36, and 37 of the Municipios
Act).
In
1997, the National Assembly passed the Citizen Legal Initiative Act. This
statute regulates “the exercise of the citizens’ right to submit draft
legislation, in accordance with the terms of Article 140(4) of the
Constitution” (Art. 1). The Act guarantees this right to each and every
“citizen.” The legislative bills that citizens can submit to the National
Assembly can be of any kind, including anti-corruption laws. The initiative
excludes organic laws, international tax legislation, statutes governing
amnesties and pardons, national budgetary provisions, and constitutional laws
(Art. 3).
The
National Assembly’s Defense and Governance Committee is currently studying a
Citizen Participation Bill. The text
recognizes and promotes citizen participation in public and state affairs in
accordance with the principle of participatory democracy contained in the
Constitution and in the international human rights instruments ratified by
Nicaragua and in accordance with the general principles of law applicable in
this regard. Its goal is to promote the full exercise of citizenship in the
political, social, economic, and cultural arenas through the creation and
operation of institutional mechanisms that allow fluid interaction between the
state and society, thus helping to strengthen democracy. The citizen
participation instruments provided for in the statute are the following: the
Citizen Regulatory Initiative at the national, autonomous region, and local
levels; the Citizen Regulatory Consultation, in the opinion phase, at the
national, autonomous region, and local levels; consultation forums for the
design, monitoring, and evaluation of public policies at the national,
autonomous region, and local levels; Residents’ Associations and Sectoral
Organizations at the local level; and the Popular Consultation at the local
level.
Another
bill before the executive is for the Information Access Act, which will set
down legal procedures for civil society and non-governmental organizations to
participate in anti-corruption efforts. This statute establishes the right of
Nicaraguans and Nicaraguan residents to have access to documents, files,
dossiers and databases kept by the government and, for this, it defines the
relevant procedures; it also upholds those persons’ right of access to
information about them recorded by state authorities and their right to be
informed of the reason for and purpose behind keeping said information.
b)
Briefly
state the results that have been obtained in implementing the above standards
and mechanisms, attaching the pertinent statistical information, if available.
No
information available.
c)
If no such mechanisms exist, briefly indicate
how your State has considered the applicability of measures within your own
institutional systems to create, maintain and strengthen the mechanisms to
encourage participation by civil society and non-governmental organizations in
efforts to prevent corruption, in accordance with Article III (11) of the
Convention.
The
executive branch, recognizing that combating corruption is a priority activity
and an urgent task for the government of the Republic of Nicaragua, and in
consideration of the basic need for strengthened government control in all
areas to ensure greater transparency in its stewardship of the assets and
resources of the executive branch, in order to enhance the efficiency and
economy with which the administration’s assets and resources are used,
created, by means of Decree No. 67-2002, the Office of Public Ethics. The job
of this Office, an agency of the President’s office, is to design and
implement policies and programs for promoting transparency and efficiency in
the administration of the executive’s assets and resources.
With
the aim of creating, maintaining, and strengthening guidelines for the
correct, honest, and appropriate performance of public functions, the Office
is charged with promoting integrity and transparency at the national level in
order to prevent corruption and tackle it when it arises, by encouraging,
among civil servants and the citizenry in general, values of honesty, civic
responsibility, and ethics, through education, dissemination, and
awareness-raising; promoting within the
agencies of the national executive, supporting, and supervising transparency
in public procurement and due observance of the Technical Internal Control
Standards issued by the Office of the Comptroller General of the Republic;
working for the introduction and enforcement of Integrated Financial
Management Systems; coordinating, with public sector authorities,
activities intended to strengthen and enhance internal auditing units and to
support their creation where they do not exist, so they can perform tasks of
the highest professional quality with efficiency, effectiveness, and
transparency in the administration of public resources; reviewing, analyzing,
and making pertinent recommendations about the work of executive branch
agencies, in order to ensure due compliance with the rules set down by the
Office of the Comptroller General of the Republic; informing the President of
the Republic about problems in the Financial Operations Supervision System,
and proposing solutions to strengthen the transparency with which the publi