Complaint in Venezuela and control of public management

How to properly report to a tax control body.

1. Introduction

The present objective of this work is to contribute to the citizenship in the exercise of their right to participate in the control of public administration, specifically, in the presentation and attention of complaints, an instrument of considerable value and importance in the prevention and combat against administrative crimes and corruption crimes, essential objectives of the national fiscal control system.

This is how every citizen, individually or collectively, directly or through their elected representatives, or through the community, may file complaints about acts, facts or omissions before the Citizen Attention Office of the competent fiscal control body. they can demonstrate the occurrence of an administrative offense and the improper disposition of public funds by officials or individuals, over whom the respective control body exercises its competence.

Basically, aspects included in the Organic Law of the General Comptroller of the Republic and the National Fiscal Control System were used, basically, the chapter that refers to citizen participation; Likewise, the Instructive Concerning Complaint, issued by the Office of the Comptroller General of the Republic, through Resolution No. 01-00-055, dated June 21, 2000, published in the Official Gazette of the Bolivarian Republic of Venezuela, No. 36,979, dated June 23, 2000, related to the formulation of complaints by citizens; likewise, the Norms to Promote Citizen Participation, issued by the Office of the Comptroller General of the Republic and published in the Official Gazette of the Bolivarian Republic of Venezuela No. 38.750 of August 20, 2007 referred to the Citizen Attention Offices, which are responsible, among other functions, to attend, guide, support and advise citizens who come to request information, request documents and make complaints, complaints, claims, suggestions or requests.

2. Fiscal control bodies

The Office of the Comptroller General of the Republic, the Office of the Comptroller of the States, Districts, Metropolitan Districts and Municipalities, the Office of the Comptroller General of the National Armed Forces and the Internal Audit Units, are organs of fiscal control with competence to receive, assess and admit, when appropriate, the complaints made by citizens and carry out the pertinent investigations in order to determine the exercise of the fiscal actions that may arise and the application of the respective sanctions. Complaints must be made before the organizational unit created for this purpose.

3. The citizen service office

Assistance to the public will be provided, essentially, by the Citizen Attention Office, which in accordance with article 9 of the Anti-Corruption Law, all entities and organizations of the public sector are obliged to create and whose objective is to promote citizen participation; provide and provide in a timely, adequate and effective manner the required information; receive, process, assess and decide complaints, complaints, claims, suggestions and requests; and in general, resolve the requests made by citizens.

4. Purpose of the complaint

The formulation of a certain complaint by any citizen is to provide the competent fiscal control body with the knowledge that officials or individuals are involved in acts, facts or omissions contrary to a legal or sub-legal provision, related to the administration, management and custody of public funds or assets, or that damage to public assets has been caused, so that the corresponding administrative investigations are initiated in order to verify the veracity and accuracy of the irregularity and establish the appropriate sanctions.

It is not enough with the good intention of the complainant to pretend that the investigative powers of the control organisms are activated so that the action begins, it is imperative that the complaint is sufficiently documented, otherwise, if the result of the completed proceedings is determined that the complaint filed is false or unfounded, or that the results of the examination of the complaint detect facts that do not warrant the initiation of the investigation, then it will be defective and worthless, so the controlling institution will order in the respective file, By means of a duly motivated order, the file of the proceedings and will record the arguments considered to make that decision.

5. Rules regarding reporting

Every citizen who makes a complaint, must do so by providing sufficient elements of conviction or evidence that allow the fiscal control institution to carry out the investigation; You can do it in writing, verbally or by electronic means. When the complaint is presented verbally, a record will be drawn up in the presence of the complainant, who must sign it together with the official who receives it. If the complaint is written, it must be signed in original by the complainant or by an attorney with powers to do so. If the complainant declares that they do not know how to sign, they must stamp their fingerprints.

People who provide original documents in their complaints may request that they be returned to them, in which case a certified copy of them will be left.

Digitized evidence, such as documents, photocopies, photographs, videos, or audio recordings, must be listed in an orderly manner and sent to the agency of the fiscal control body indicated in the system.

5.1. Processing of the complaint

It is the responsibility of the Citizen Attention Office to determine if the comptroller body has competence to process the complaint filed.

When the complaint does not correspond to the organization's sphere of competence to resolve it, the respective Citizen Attention Office will send it to the competent body or entity and will inform the complainant of said referral.

Once the competence to manage the complaint has been established, the fiscal control body will indicate to the complainant that it will be processed and that they will be informed of the results.

5.2. Timeliness, clarity and precision

Even when the acts of corruption do not prescribe, it is imperative that the complaint be filed in a timely manner, so that the information contained therein is current and valuable so that the authorities to whom it corresponds, adopt the measures aimed at correcting the reported irregularities; likewise, it should be drafted clearly and precisely, inserting the necessary details that contribute to the clarification of the facts.

6. Rules regarding the complainant

The complainant must fully identify himself, indicating his address or residence, nationality, identity card or passport, profession or trade, telephone, email; Describe the events that, in your opinion, constitute irregularities in the management of public assets and funds and indicate who the alleged perpetrators and the people who have witnessed them, or who have news of them, for which you must indicate the positions they held or they perform, the entity or body and location where the irregularity occurred, date of occurrence and indicate what their claim is in relation to the facts reported, that is, provide the elements that allow the controlling body to verify the evidence presented.

It should be noted that anonymous complaints are not admitted by the fiscal control institutions, however they will be considered as long as they provide sufficient evidence and are covered by sufficient evidentiary means that allow them to initiate the investigation ex officio.

6.1. Confidentiality

The identity of the complainant, the information, the documents and other evidences that support the complaint will be confidential, in such a way that the dependency of the fiscal control body that receives or processes the complaint, will preserve the identity of the person filing it, as well as their address., profession, workplace, or any other data that may serve to identify them without prejudice to the right of the accused in accordance with the laws of the Republic.

In the development of the action, discretion in the handling of information are basic elements, for which the fiscal control body must maintain confidentiality in relation to matters of which it is aware, except in cases required by law.

As the investigations are reserved, the complainant is not allowed to request copies or in any way have access to the file; the actions are reserved and their results could originate the exercise of fiscal actions for the determination of the administrative responsibilities that may be applicable.

The hierarchical superior of the fiscal control body, will apply the disciplinary sanction that may be applicable, when he determines that officials have violated this prohibition; In addition, there are criminal sanctions for those who, without just reason, reveal a secret whose disclosure may cause harm, and of which they are aware by reason of their status, functions, profession, art or trade.

6.2 objectivity

The complainant must be responsible and objective when using this medium. You should not forget that before the commission or omission of irregular acts against public property, it is a duty and a right that you have to go to the competent fiscal control body to make your complaint, an institution that is obliged to provide you with the greatest facilities and collaboration.

When the complaint is irresponsibly used as political retaliation or another way of unloading personal emotions, insulting, defaming and disqualifying people and institutions, then the complaint degenerates as a means of citizen participation, and far from promoting the correction of administrative measures, or the investigation for the application of sanctions to those responsible for the crime or act of corruption, becomes rather a pamphlet of no value.

7. Example of complaint

Next, a hypothetical case of a complaint made before a fiscal control body.

Citizen

Abg. Federico Leal Molina

Municipal Comptroller of Palencia

Central State - Venezuela

His office.

I, Euro Pablo Morales Álvarez, of legal age, Venezuelan, married, economist, holder of identity card No. V-00,000,000, domiciled in the Miranda urbanization, calle 22, house No. 123-12, Asturias parish of this city and Palencia Municipality of the Central State, cell phone00-000-0000, email [email protected], acting in my capacity as chief councilor of the Palencia Municipal Council, a condition that I hold because I was elected by direct and secret vote In the electoral process of 2007, with due respect, I concur before your competent authority to expose and request the following:

In accordance with article 96 of the Organic Law of the General Comptroller of the Republic and of the National Fiscal Control System, in accordance with article 9 of the Norms to Promote Citizen Participation, issued by the General Comptroller of the Republic and published in The Official Gazette of the Bolivarian Republic of Venezuela No. 38,750 of August 20, 2007, I proceed to denounce, as in effect I do, the citizen Mayor of the Municipality of Palencia, Ernesto Luís Burgos Zamora, who is Venezuelan, of legal age, married, engineer civil, holder of identity card No. V-0-000.000, domiciled in Villa Delia urbanization, avenue 37, house No. 30-A, Toledo parish, Palencia Municipality of the Central State,for alleged irregular acts committed that could be typified in the case provided for in article 13 of the Anti-Corruption Law, for which reason I request that an administrative investigation be initiated on the following facts:

On Wednesday March 4, 2008, in the body marked with the letter A, page A-3 of the newspaper of national circulation El Sendero and body 1, page 1-4 of the newspaper of regional circulation Realidad, separate press notices were published full page, allegedly paid by the Mayor of the Municipality Palencia, where you can see in the upper central part of both notices, the official coat of arms of the Municipality Palencia, which reads "Mayor of the Municipality Palencia", intended for members and friends from the Communal Thought political party. Said publicity appears signed by the citizen Ernesto Luís Burgos Zamora, in his capacity as Mayor of the Municipality of Palencia and entitled "Political and Citizen Unit", all as evidenced by copies of the newspapers El Sendero Y Realidad on March 04, 2008,which attached to this complaint.

In the content of these press notices, the citizen Mayor refers to notions and concepts of a political nature, when he hailed the Communal Thought party as “… a political movement that emerged as a new alternative oriented to social progress with a national vision and principles republicans ”. Likewise, it calls on all the leaders of the Social Ideology and Latin American Vanguard parties to "… adopt the cause of an inclusive, solidary and civically participatory democracy." In the same way, it details concepts related to Central American political parties, in short, it makes allusions with a clearly political-partisan content.

Now a citizen Comptroller, the Mayor of the Municipality of Palencia, as the highest civil authority of the Municipality and, consequently, administrator of the entity's own resources, seems to confuse his political-partisan affiliation, with the character he represents as Mayor, having been appointed by the people as Chief of the Municipal Executive, that is, they mix their personal political-partisan interests with the investiture that they exercise. Likewise, it allegedly uses public funds to pay for the publication of such notices, which constitutes an alleged crime against public affairs, as established in article 68 of the Anti-Corruption Law:

"Article 68. The public official who, abusing his functions, uses his position to electorally favor or harm a candidate, group, party or political movement, will be sanctioned with prison for one (1) year to three (3) years."

Consequently, citizen Comptroller, for the aforementioned events, the Mayor of the Palencia Municipality, Ernesto Luís Burgos Zamora, previously identified, would presumably be involved in the factual event provided for in article 13 of the Anti-Corruption Law, which establishes:

"Article 13. Public officials and employees are at the service of the State and not of any political or economic bias. Consequently, they will not be able to allocate the use of public goods or the resources that make up the public patrimony to favor political parties or projects, or private economic interests ”.

Since in my capacity as a Councilor I am concerned that events such as this are perpetuated and because I am obliged as a citizen to denounce any public official who has incurred in alleged acts of corruption framed in the events that I am reporting today, it is for What I go to his Office of the Comptroller to proceed to open a file and initiate the respective administrative investigation into this complaint, since the current Anti-Corruption Law establishes the rules that govern the conduct that persons subject to it must assume, and mainly to public officials, to safeguard public assets, based on the principles of honesty, decorum, equity, legality, accountability and responsibility,enshrined in the Constitution of the Bolivarian Republic of Venezuela.

Consequently, I go to his competent Office of the Comptroller, so that he may use all the necessary steps to clarify the facts and acts that I denounce here.

I request said comptroller, that if there are founded indications that the person under investigation has been involved in the event of fact provided for in article 91, numeral 12 of the Law of the General Comptroller of the Republic and the National System of Fiscal Control, the which states the following:

“Article 91 Without prejudice to civil or criminal liability, and what other Laws provide, the following acts, facts or omissions constitute alleged generators of administrative responsibility:

(…)

12. Make expenses or make commitments of any nature that may affect the responsibility of the entities and organizations indicated in numerals 1 to 11 of article 9 of this Law, without prior legal authorization for it, or without having budgetary resources necessary to do what; unless such operations are carried out in obvious emergency situations, such as in cases of natural catastrophes, public calamities, internal or external conflict or other similar ones, the magnitude of which requires their urgent realization, but immediately informing the respective fiscal control bodies, in order that they proceed to take the measures they deem appropriate, within the limits of this Law.

(…) ”

Then proceed to file the respective complaint with the Office of the Comptroller General of the Republic and with the Office of the Public Prosecutor, requesting the imposition of the sanction provided for in article 68 of the Anti-Corruption Law, for the alleged commission of crimes against public property.. In Palencia, on the 25th day of March 2008.

Signature

Attached:

A copy of the newspapers El Sendero y Realidad dated March 4, 2008.

• Certified copy of the minutes of the session of the Municipal Council of Palencia where the swearing in of the citizen Ernesto Luís Burgos Zamora, as Mayor of the Municipality of Palencia.

• Copy of the registration of the Communal Thought political party before the National Electoral Council (CNE) ”.

8. Tax actions

Once the veracity of the reported irregular situation has been determined, the Citizen Attention Office will send it to the respective unit for the exercise of the pertinent fiscal actions.

Likewise, it will communicate the results obtained to the authority who is responsible for adopting measures to prevent or correct the deficiencies reported or the production of damage to public property, if applicable, protecting the identity of the complainant at all times.

9. Bibliography

Arteaga Sánchez, Alberto. The Crimes Against the Public Thing in the Organic Law of Safeguarding of the Public Patrimony. Legislative Texts Collection No. 2. Venezuelan Legal Editorial. Caracas, 1983.

Baptista, Clevy Guerrero de. Course on Administrative Inquiries and Substantiation of Records.

Brewer- Carías, Allan R. Studies in Administrative Law 2005-2007. Collection of Legal Studies No. 86. Venezuelan Legal Editorial. Caracas, 2007.

Cruz M., Andrés J., Cira de Pelekais and William Torres. Administrative Responsibility within the framework of the Organic Law of the General Comptroller of the Republic and the National System of Fiscal Control. Ediciones Astro Data SA 2005. Maracaibo, Venezuela.

Here, Douglas. Manual of Policies, Norms and Procedures for the Municipal Comptroller. Mobilibros Sucesores, Caracas, 2005.

Orlando, Freddy J. The Inquisitive Power of the Fiscal Control Bodies and the Determination of the Administrative Responsibility of Public Officials. Andres Bello Catholic University. First Edition 2004, Caracas, Venezuela.

Peña Solís, José. The Regime of the Formulation of Remedies in the Organic Law of the General Comptroller of the Republic and the National System of Fiscal Control. Normative Collection No. 3. Supreme Court of Justice. Caracas. 2002.

Russián Uzcátegui, Clodosbaldo. Management Reports 2003-2007 to the National Assembly. Website www. cgr.gov.ve/

Sánchez Falcón, Enrique. Contribution to the Study of the Investigative Power of the Comptroller General of the Republic. Fiscal Control Magazine No. 77. Editions of the Comptroller General of the Republic.

10. Legal and administrative instruments

Civil Code of Venezuela. Official Gazette No. 2,990 Extraordinary dated July 26, 1982. Constitution of the Bolivarian Republic of Venezuela. Official Gazette No. 36,860 dated December 30, 1999. Code of Ethics for the Public Official. Resolution No. 01-00-000019 dated May 12, 1997. Office of the Comptroller General of the Republic. Official Gazette No. 36,268 dated August 13, 1997. Code of Civil Procedure. Official Gazette No. 4,209 Extraordinary dated September 18, 1990. Organic Code of Criminal Procedure. Official Gazette No. 5,558 dated November 14, 2001. Legal Opinions of the Office of the Comptroller General of the Republic. Publications of the Office of the Comptroller General of the Republic. Instructions on Complaints. General Comptroller of the Republic. Resolution No. 01-00-055 dated June 21, 2000.Official Gazette No. 36,979, dated June 23, 2000, Law Against Corruption. Official Gazette No. 5,637 Extraordinary dated April 7, 2003, Law on the Statute of Public Service. Official Gazette No. 37,522 dated September 6, 2002, Organic Law of Public Administration. Official Gazette No. 37,305 dated October 17, 2001, Organic Law of the Comptroller General of the Republic and the National Fiscal Control System. Official Gazette No. 37,347 dated December 17, 2001, Organic Law of the Ombudsman's Office. Official Gazette No. 37,995 dated August 5, 2004, Organic Law of the Public Ministry. Official Gazette No. 38,647 dated March 19, 2007, Organic Law of Citizen Power. Official Gazette No. 37,310 dated October 25, 2001, Organic Law of the Municipal Public Power.Official Gazette No. 38204 dated June 8, 2005. Law on Simplification of Administrative Procedures. Extraordinary Official Gazette No. 5,393 dated October 22, 1999. Decree 368 dated October 5, 1999. Rules to Promote Citizen Participation. General Comptroller of the Republic. Official Gazette No. 38,750 dated August 20, 2007.Regulation of the Organic Law of the General Comptroller of the Republic. Official Gazette No. 37,169 dated March 29, 2001.Regulation of the Organic Law of the General Comptroller of the Republic. Official Gazette No. 37,169 dated March 29, 2001.Regulation of the Organic Law of the General Comptroller of the Republic. Official Gazette No. 37,169 dated March 29, 2001.

11. Visited web pages

• Comptroller General of the State Aragua

Otero Duno, César Augusto.

The complaint and the quality of the interested party.

• Comptroller General of the Bolivarian Republic of Venezuela

Citizen Attention Office.

Complaints.

• Office of the Comptroller General of the Republic of Costa Rica

Guidelines for handling complaints filed

with the Office of the Comptroller General of the Republic.

• Municipal Comptroller of Maracaibo

Citizen Services.