The fear of public information feeds the banality of the audit.
The specialized bodies in the investigation to combat corruption have tacitly accepted the banality of the audit, and therefore, the audit.
However, the International Organization of Supreme Audit Institutions (INTOSAI) is oblivious to reality, establishing in the General Vision of the Strategic Plan 2011-2016, fighting corruption, and also guiding this fight. However, Juan Ramallo, member of the European Court of Auditors (TCE) affirmed “It is not the role of the TCE to investigate fraud cases. For this there is the European Office to Fight Corruption (OLAF). What we do is report to OLAF all cases in which our auditors consider that there are suspected frauds. ” And specifically in Spain it is mentioned “It is very difficult for the Court of Accounts to detect any type of fraud in the activity it carries out. His priority is not to fight corruption, but to verify that the approved budget has its destiny,points out one of the 12 advisers of the Court of Accounts ”.
In Mexico, the head of the Superior Audit of the Federation (ASF) sometimes affirms that "government auditing is not an express tool as an instrument against corruption" and others, "Regarding the fight against corruption, we maintain that the audit work represents an important tool to help close the spaces to inappropriate handling ”. In other words, the ASF contradicts itself, on the one hand it maintains that it will review, if there were acts of corruption, in the specific case of Oceanography, the most recent scandal in Mexico, which was audited by the ASF and the Ministry of the Function Public (governing bodies of control) and even by a commission of deputies, and despite this, none detected the false invoices to Banamex,in the investigation to detect possible apocryphal invoices and corroborate who signed the contracts. And on the other hand, no, "it will be difficult to determine whether or not corruption was committed (…) How does one show that a public servant received money?". The latter coincides with the statement of, Baltasar Garzón Real, in a conference at the Ministry of Public Function in Mexico City, says "What happens with corruption investigations is that they are very difficult, very difficult because we are not facing cases of normal and current bites (…) influence peddling or privileged information, and how is this verified? ”. In the same sense, the Bank of Spain inspectors admitted "that as their main task is the detection of solvency and management problems of financial institutions,and due to the difficulty of trying complex behaviors, there is no active work in the prosecution of crime (…) Therefore, the usual way of reacting to signs of crime is to look the other way ”.
It is generally accepted in the world of auditing and control that the role of auditors is not to discover fraud, but to issue a technical opinion on whether the financial statements or public accounts reasonably or accurately represent reality. Although since 1999, Vicente Montesinos Juive, professor of financial economics and accounting at the University of Valencia, pointed out “Traditionally, it has been said that the audit was not aimed at the discovery of fraud, but in any case, revealed them insofar as they were detected within the normal development of the audit process. "This appreciation has been nuanced in recent years as a consequence of the appearance of important cases of fraud and corruption in the public sector."But the nuances have not led to clarify or determine the problems of auditing and oversight regarding the fight against corruption, despite the fact that corruption has become one of the main concerns of Spanish citizens. For example, the V Public Sector Audit Conference, to be held in Barcelona on April 24, 2014, has established, in its first point to discuss, the prevention of fraud in the public sector.
The above seems commendable, to debate about prevention. Furthermore, to anticipate is to anticipate, it is only prevented when an event or event could or is about to happen. And prevention is aimed at reducing or eradicating said risk. On the contrary, corruption is a phenomenon that occurs, that is, is a present, not an eventuality. And with the establishment of the Anti-Corruption Agencies, Offices or Prosecutors, it has been decreed that private or public auditing does not have corruption as its object. For this reason, the 5th Conference on Public Auditing considers the prevention of fraud, and accordingly, the associations and institutes of auditors and accountants have also withdrawn from addressing the issue of corruption. However, the premise that the existence of a specialized body guarantees the fight against corruption is accepted,such as is the directive of the United Nations Convention against Corruption, but paradoxically it is the cause that makes it impossible to fulfill the purpose of the referred Convention, because How is the fight against corruption promoted and strengthened if the audit is excluded on the research?
Since its inception, the audit, and specifically, the audit, was self-excluded. For example, Bernhard Friedmann, President of the ECA and Hubert Weber, an Austrian member of the same Court, justified that the Lima Declaration “left aside the basic question of the area of irregularities and fraud (…) since the desire to prevent the audit will be similar to the police measures ”. Thus, the audit was far from specifying in its conclusions observations that were criminally prosecutable. And so it has been during its development, the reluctance to qualify determine facts, preferring to conceptualize them as 'irregularities'. Generic and vague notion, which caters more to the administrative and / or accounting nature than criminal. Robert Cortell Giner, Chief Lawyer of the Sindicatura de Comptes of the Valencian Community,agrees "The audit reports should also help to clear up doubts, adopting a methodology that allows them to specify the assumptions of presumed accounting responsibility that are detected and leaving due proof in the report." And the Network for Accountability (born between academic research, journalism in the background, the action of civil society and institutional responsibility to create the conditions of opinion and demand for the design of an accountability policy) they affirm, is what has led to the “lack of effective consequences derived from the audits”. And to the indignation and denunciations.adopting a methodology that allows them to specify the assumptions of presumed accounting responsibility that are detected and leaving due proof in the report. ” And the Network for Accountability (born between academic research, journalism in the background, the action of civil society and institutional responsibility to create the conditions of opinion and demand for the design of an accountability policy) they affirm, is what has led to the “lack of effective consequences derived from the audits”. And to the indignation and denunciations.adopting a methodology that allows them to specify the assumptions of presumed accounting responsibility that are detected and leaving due proof in the report. ” And the Network for Accountability (born between academic research, journalism in the background, the action of civil society and institutional responsibility to create the conditions of opinion and demand for the design of an accountability policy) they affirm, is what has led to the “lack of effective consequences derived from the audits”. And to the indignation and denunciations.the action of civil society and institutional responsibility to create the conditions of opinion and demand for the design of an accountability policy), they affirm, is what has led to the “lack of effective consequences derived from audits”. And to the indignation and denunciations.the action of civil society and institutional responsibility to create the conditions of opinion and demand for the design of an accountability policy), they affirm, is what has led to the "lack of effective consequences derived from audits". And to the indignation and denunciations.
For example, Causa en Común (citizen organization focused on building community, establishing relationships of trust and participation between Mexicans and their institutions, promoting mechanisms to make the government accountable, actions aim to strengthen the rule of law and democracy), accuses that the reports of the ASF corresponding to the public accounts of the years 2009, 2010 and 2011 relating to the Fund of Contributions for Public Security of the States and the Federal District, there are serious irregularities that have gone unpunished, "There is no record that (the ASF) has reported to the Public Ministry, nor has it exerted any pressure to repair the damage to society." So academics and social organizations, among others,They promote the proposal to strengthen the inspection institutions, among them mainly, through constitutional autonomy. Understood as a legal construction that aims to protect the inspection entities from the undue interference of the public and factual powers. However, this is not the fundamental problem but rather the weakness of the principles and foundations of auditing and control. Ferrán Termes Angles, Trustee of the Sindicatura de Comptes de Catalunya, affirmed “nowhere is the meaning of such basic words as inspection defined, nor is the meaning of a word so widely used in the field of private company as audit firm ”and Jorge Lozano Miralles, professor of Constitutional Law at the University of Juén,"The scarce, if not null, mention of the word audit in the regulatory laws of the supervisory bodies."
And the United Nations Convention against Corruption, in article 9, on public contracting and management of the Public Treasury, in section 2. It says, “Each State Party, in accordance with the fundamental principles of its legal system, It will take appropriate measures to promote transparency and accountability in the management of public finances. Those measures will include, among other things (…) subsection c) A system of accounting and auditing standards, as well as the corresponding supervision ”. And in article 12, of the private sector, it establishes “1. Each State Party, in accordance with the fundamental principles of its domestic law, shall adopt measures to prevent corruption and improve accounting and auditing standards in the private sector. ” And at point “3. In order to prevent corruption,Each State Party shall adopt the necessary measures (…) to prohibit the following acts carried out in order to commit any of the crimes established in accordance with this Convention (…) subsection c) The use of false documents. ”
In Mexico, the federal legislation has established the penal types as for the active subject to have the quality of public servant, among which stand out, the illicit enrichment; bribery of civil servants, nations and foreigners; the embezzlement; influence peddling; abuse of authority; the improper exercise of public service, and crimes against the administration of justice. Then, the difficulty, and even the impossibility of proving the crimes described above, seems to confirm the opinion of the Superior Auditor of the Federation and Baltasar Garzón to exonerate participation in the investigation of the audit and inspection. As OLAF does not mention the intervention of auditors, however, it points out its multidisciplinary nature. Since it basically states that,supports the national judicial authorities in criminal and assistance procedures. And the recent creation of the Specialized Prosecutor's Office in crimes related to acts of corruption, arises from the Office of the Attorney General of the Republic, and in the Agreement any reference to the audit or relations with higher control entities or supervisory bodies is omitted. state. So the question arises, how is it intended to detect and investigate acts of corruption? Because in the Agreement creating the Prosecutor's Office, it does not say or establish it.and in the Agreement, any reference to the audit or relationships with the higher control entities or state control agencies is omitted. So the question arises, how is it intended to detect and investigate acts of corruption? Because in the Agreement creating the Prosecutor's Office, it does not say or establish it.and in the Agreement, any reference to the audit or relationships with the higher control entities or state control agencies is omitted. So the question arises, how is it intended to detect and investigate acts of corruption? Because in the Agreement creating the Prosecutor's Office, it does not say or establish it.
Other similar practices should be reviewed, for example, OLAF with nearly 15 years of experience with respect to the new specialized body in Mexico. The European Court of Auditors following up on Special Report No. 1/2005 on OLAF's Management made the following considerations regarding the work carried out:
- OLAF should increase the number of investigations and speed up their conduct, devoting more time to its primary investigative role. The contribution of intelligence units to investigative work should be endeavored. The legislative framework to combat fraud and irregularities should be reviewed. in order to simplify and consolidate said legislation. Such a review should address the weaknesses found in OLAF's current powers and procedures.
Among the most significant for the present analysis. And in Spain, the National Tax Fraud Investigation Office (ONIF) created in 1998, is said to be suffering from a shortage of resources and specialization, and “Anticorruption faces a very small part of corruption crimes, among a According to tax sources, 10% and 20% of these types of cases (…) The chief prosecutors, for these cases, request technical teams specialized in accounting, taxation and business operations ”.
But, it is not only intended to recognize the deficiencies of the Specialized Prosecutor's Office in matters of crimes related to acts of corruption in Mexico, but to understand why the audit and oversight has failed, and therefore, it is considered to be a banality?
The development of ideas in auditing and control has been more abstract than concrete, and 'when it touches the ground' is almost invariably superficial. In the sense that it has permanently put aside the problem of corruption. For this reason, the method, as the first point to be developed, must start from specific and concrete cases; an understanding necessary to re-direct the sense of audit and oversight.
Therefore, the following case is exposed: On January 6, 2014, the Office of the Comptroller General, dependent on the Executive Power of Michoacán, issued Cedulas of observations and Recommendations to the Commission of Fairs, Exhibitions and Events of the State of Michoacán (COFEEEM) on the occasion of the Expo-Fair 2013 Event.
Observation number 4, regarding the leasing of spaces, confirmations were made to each of the tenants, obtaining the following result, “C. José Martín Vega Moreno recognizes the amount of $ 62,500.00 as paid to the COFEEEM, as well as By means of a letter without a date dated October 28, 2013, it informs that as of that date it does not owe any balance and that it did not sign the respective contract; reason why a difference with what is reported by the COFEEEM of $ 58,000.00 follows.
Regarding the CC. Fernando Molina Ortìz and Fernando Arroyo Jiménez, it was not possible to deliver the respective certifications, since we were informed by the inhabitants that they were 'that person did not live there.' ” And the recommendation says, “The corresponding clarifications must be made. Of this, they must present before this Control Body the legal documents that accredit the right of collection and guarantee the fulfillment of their functions, having to safeguard the heritage of the COFEEEM ”.
Observation number 6 indicates "the lack of formalization in time and form of space leasing contracts, given that some of them lack the tenant's signature, so there is no legal document that proves the right of collection., running the risk of being unrecoverable, which adds up to the amount of $ 437,500.00. Recommending, exposing and documenting the duly founded reasons, presented in original for comparison, the respective documents ”.
Observation number 7, leasing of the entertainment center, “Regarding the address indicated in the contract in order to present the respective confirmation, which was received by his sister, in this regard he states that 'his brother did not live there and that he did not know where we could locate it. It is recommended to "inform the contractor's fiscal address".
And at the end of the same Certificate of Observations and Recommendations referred to, the following note is placed “In terms of the Law of Transparency and Access to Public Information of the State of Michoacán, hereinafter LAIPEMO, in its Articles 45, 46, and 47 This document is part of a file classified as reserved, according to the Information Reservation Agreement issued by the Office of the Comptroller Coordination of the State Executive Head, so its content and its dissemination are the responsibility of the public servant to whom it is addressed. The foregoing in order not to incur in breaches of LAIPEMO, in its Article 52 that indicates, The public servant who, under her responsibility, custody of information classified as restricted access, and releases it, will be sanctioned in the terms indicated by Law. "
The aforementioned articles establish:
Article 45. Reserved information is considered as classified as such by agreement of the owner of each of the obligated subjects, after a provenance opinion issued by the Institute.
Article 46. The clarification of the information as reserved proceeds when:
- It is information whose disclosure puts at risk the security of the State or the municipalities, the life, security or health of people; It is information whose disclosure may cause harm to crime prevention activities, the imparting of justice, the collection of contributions or any other action that has as its object the application of the laws; They are files of jurisdictional processes or administrative procedures, as long as they have not caused status.
Article 47. The agreement that classifies the information as reserved must demonstrate that:
- The information falls under one of the hypotheses of exception: The publicity of the information may threaten the interest protected by the law; and, The damage that can occur with the publicity of the information is greater than the public interest to know it.
Contrary part, the United Nations Convention against Corruption, in its article 13, paragraphs a) and b) Regarding the participation of society, establishes: Each State Party shall adopt appropriate measures, within the means available and in accordance with the fundamental principles of its internal law, to promote the active participation of people and groups that do not belong to the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention and fight against corruption, and to sensitize public opinion regarding the existence, causes and severity of corruption. Ensuring effective public access to information.
And that it is in line with the constitutional and transparency reforms in Mexico, article 6. "All the information in possession of any authority, entity, organ and organisms of the Executive, Legislative and Judicial Powers, autonomous organs, political parties, trusts and public funds (…) at the federal, state and municipal level, is public (…) In the interpretation of this right, the principle of maximum publicity must prevail ”.
However, the observations, recommendations and the note described above, shows an intimidating control body that fails to promote the participation of civil society, and also violates LAIPEMO, article 9, of the minimum information that must be disseminated from official letter from public entities, section VIII. The results of all kinds of completed audits made to the budget year of each of the public entities. And above all, when the state of Michoacán is immersed in a problem of public security, and therefore of institutional weakness,The Executive Branch has recently sent an initiative to reform the Superior Audit Office of Michoacán (an organ dependent on the Local Legislative Power) and the Coordination of Comptrollership (an organ dependent on the State Executive Power) has been omitted from said reform, when they fail to observe not only the lack of diligence in the performance of the public service, but the repeated conduct of deception and falsification of the information, which evidently caused property damage to the state public treasury. And therefore the recommendations are inadequate and absurd. Like the alleged "reform" of auditing promoted by the Government of Fausto Vallejo. The weakness of institutions can be reversed by strengthening control institutions,For this reason, it is suggested to the recently created Anticorruption Prosecutor's Office in Mexico that part of the investigation be through the audit reports, because:
- Corruption is not necessarily a hidden act, nor is it a complex phenomenon that is difficult to prove. Corruption has been unobservable in audit and audit reports (it is recognized that pointing to a specific case does not generally support a claim, but statements and positions of the control institutions allow inferring such generality, and the pending work is not omitted to demonstrate the assertion). And although the States Parties to the United Nations Convention against Corruption have complied with complying with the classification of corruption crimes, such as money laundering, influence peddling, among others. In Mexico, as in other countries, deceit and lies persist as practices that do not guarantee the trust or veracity of information, both in the private and public sectors.
In other words, legal and legal reforms, one of the lines of work of the UN Subcommittee, installed on July 14, 2004, to ensure compliance with the provisions of the Convention are insufficient to combat corruption. For this reason, Ban Ki-moon, Secretary General of the United Nations Organization, affirmed "much more still needs to be done to fight corruption, overcome it, improve legality and also involve civil society."
And citizens respond, the principles, foundations, and the vision that has governed auditing and oversight do not respond to the challenge of fighting corruption.
The second point defines or determines the correct thinking in the audit and control. And they must specify what their object is (as an element of knowledge). A new object requires new conceptual instruments and new theoretical foundations. But the task is not individual but collective, and the challenge for the associations and institutions of auditors and accountants is to accept it or disappear.
And the third, aims to spread or transmit the new meaning of auditing and oversight so that they do not end up in history as a banality.
