Law on the Court of Accounts | Lawyer Moldova

Social Icons

lawyer moldova twitter lawyer moldova facebook lawyer moldova linkedinlaw moldova rss feedlawyer moldova email

Featured Posts

Wednesday, 17 July 2013

Law on the Court of Accounts



Law No 312-XIII dated 08.12.94

Published in the Official Gazette of the Republic of Moldova No 7/77, dated 02.02.1995

Note: the Law was republished in the Official Gazette, in a special issue dated 09.12.2005, page 4.
Note: the Law was republished anew in the Official Gazette, No 25 – 26, dated 21.02.2003, page 5.
Note: The word “collaborator” used in the wording of the Law shall be replaced with the word “employee”, in line with Law No 1063-XV, dated 17.05.2002.
Note: See the Parliament Decree No 313-XIII dated 08.12.94 “On the implementation of the Law on the Court of Accounts”.

The Parliament adopts this Law.

Chapter I
GENERAL

Article 1. – (1) The subject of this law refers to the basic provisions on the external financial control carried out by the Court of Accounts.

(2) The goals of this law are:
a) Ensuring observance of the formation, management and use of the public financial resources;
b) Ensuring the use of the public assets in a legal way, in line with their destination;
c) Ensuring an economical, efficient and effective use of the public assets;
d) Ensuring a legal governing of the Court of Accounts.

Article 2. – The terms used in this law designate the following:

Objective of the control – a precise declaration of the things a control seeks to realize and/or the question to which the control is supposed to give an answer;

Thematic control – a control of one or more financial aspects related to the operation of the entity subject of the control or the use of the public assets;

Policies followed by the governing programme – a set of measures meant to contribute to the realization of a number of goals using the corresponding resources during a set period of time;

Specific programme – use of the appropriated finances for a concrete action or a set of coherent actions undertaken to achieve an objective or a set of well defined objectives with respect to which there exist performance indicators and evaluation indicators of the envisaged outcomes.

Organisation – an efficient use of the human resources, economic structures and processes for the realization of certain objectives;

Management policies – decrees , actions and rules, observed in monitoring, accounting and using of human, financial and other type resources. The management policy refers to the internal operations of the institution;

Economical approach – minimising costs of resources used in a certain activity without an impact on the effective realization of set objectives (the quality);

Efficiency – relationship between the outcomes and resources used for the purpose;

Effectiveness – the degree to which set objectives are realized and the relationship between the envisaged impact and the real one;

Public property – total set of ownership rights and duties belonging to the state, standing for a closely linked totality of assets and equity valued in money, and which is managed by assigned legal entities;

Financial revision – checking accuracy of financial statements, observance of the law and rules relevant to the economic financial operations;

Entities subject to controls – institutions subject to controls;

Control (audit) procedures – tests, guidelines and actions to be applied during the control (audit) process in a systematic and reasonable way;

Findings – specific aspects identified by the auditor as contributing to the realization of the control objectives;

Pertinent control evidence – sufficient and relevant data facilitating the realization of the control objectives. The data are highly qualitative and inspire trust and security;

Relevant control evidence – pertinent data referring to the control objectives, which are meant to back up the findings;

Reasonable control evidence – economical, efficient and effective data from the point of view  of their cost.

Performance control (audit) – and independent evaluation or examination of the extent to which an activity, a programme or an institution operates in an economical, efficient and effective way;

Subsequent control - a control of an entity subject to control at the end of an economical financial operation;

Verification control - a control of the partners of an entity subject to control with the purpose to verify the correctness of undertaken operations;

Standard (norm) – a document establishing the minimum orientation of a control (audit) and determining the control (audit) stages and procedures;

External control – a control carried out by an empowered body displaying activity in conditions of organizational and functional independence with respect to entities subject to control.

Article 3. – (1) The Court of Account is the supreme state financial control body and carries out its activity in line with the Constitution of the Republic of Moldova, this Law and other legal acts regulating this area. The Court of Accounts enjoys an organizational and functional independence.

(2) Annually, before July 15 of the year, the Court of Accounts submits a report to the Parliament on the management of public finances during the expired budgetary execution. The report refers to identified violations and measures undertaken for their correction. The President of the Court of Accounts makes the presentation of the annual report during a special session of the Parliament. The Parliament and deputies of the Parliament shall receive copies of the annual report at least 15 days in advance to the special session of the Parliament.

(3) The Official Gazette of the Republic of Moldova publishes the annual report of the Court of Accounts within 15 days since the presentation of the report in the special session of the Parliament.

(4) The Court of Accounts is a legal entity and has its own stamp with the national coat of arms on it.

(9) The Court of Accounts has its headquarters locate in the capital of the country.

Article 4. - In carrying out its external financial control the Court of Accounts observes the following principles:

a) Legality;
b) Responsibility;
c) Integrity;
d) Objectiveness and independence;
e) Competence;
f) Rigorousness;
g) Perseverance;
h) Clear disclosure of findings;
i) Transparency.

Article 5. – (1) The Court of Accounts approves its activity programme in an autonomous way.

(2) Controls of the Court of Accounts are initiated ex officio and may not be suspended.

(3) Parliament decrees requesting the Court of Accounts to carry out certain controls within its terms of reference are binding.

(4) Once in a quarter of a year, at the request of any parliamentary faction, the Court of Accounts can make an additional control of the public funds management without a Parliamentary decree for that. The Court of Accounts shall report to the Parliament the outcomes of such a control within at the most 60 days since the day of the request.

(5) No other public authority can oblige the Court of Accounts to carry out controls or revisions.

Article 6. – (1) The Court of Accounts submits additional reports to the Parliamentary standing commissions with findings of controls of special importance for the state requesting a Parliament decision hereupon.

(2) At the request of a parliamentary faction, a parliamentary commission or a deputy the Court of Accounts shall submit, within 5 days period of time, the documents, decrees and reports with the outcomes of controls made.

(3) Decrees of the Court of Accounts of the Republic of Moldova issued based on controls shall be published in the Official Gazette of the Republic of Moldova within 10 days following their effectiveness. Decrees that have been appealed shall be published only when the final ruling of the court has been made.

Article 7. – (1) The Court of Accounts shall have free access to any natural person or legal entity’s acts, documents and information it needs to perform its control functions.

(2) All natural people and legal entities controlled by the Court of Accounts are obliged to submit in due terms the requested acts, documents and information and ensure access to their premises.

(3) If the Court of Accounts comes across information, which constitutes state, official, commercial or personal secret, it is obliged to observe its confidentiality and disclose it exclusively to the authorized agencies.

Article 8. – The Court of Accounts shall have its own budget envisaged as distinct item in the state budget and is entitled, on a monthly basis, to draw funds from the State Treasury account within the approved limits.

Article 9. – The organisation structure and the staffing of the Court of Accounts are established by the Parliament at the proposal of the President of the Court of Accounts.

Article 10.  – (1) The Court of Accounts may participate to the activities of respective specialised international organisations and become member of such.

(2) The Court of Accounts may cooperate with respective specialised international organisations and exercise on their behalf control of the management of funds provided to the Republic of Moldova if the international treaties, conventions or other agreements stipulate this power.

Article 11. – (1) The Court of Accounts, if necessary, may cooperate with the General Prosecutor’s Office, interior affairs bodies and other law enforcement and control bodies. In doing so it shall avoid interfering into their activities related to the public prosecutor’s powers, investigation, inquiry and justice.

(2) Whenever controls identify violations, the investigation of which constitute the responsibility of other control or law enforcement bodies, the Court of Accounts shall are develop control acts for each separate violation and submit them to the relevant bodies obliged to undertake measures.

(3) The Court of Accounts is entitled to request and to use in its activity control materials developed by other control and law enforcement bodies with respect to entities subject of control and the latter are obliged to submit them at its first request.


Chapter II
ORGANISATION AND OPERATION OF THE COURT OF ACCOUNTS

Article 12. – The Court of Accounts shall comprise 7 members, out of which 3 shall represent the parliamentary majority and 4 shall represent the parliamentary opposition.

Article 13. – The Court of Accounts shall be run by the President and the deputy President of the Court.

Article 14. – The President of the Court of Accounts shall be appointed by the Parliament for a five - year mandate with the total vote of elected deputies. The candidate shall be proposed by the Chairman of the Parliament who makes the proposal subsequent to an obligatory consultation with the parliament factions constituted within the law.

(2) The President of the Court of Accounts proposes candidates for the Court members at the recommendation of the parliament factions constituted within the law. Each parliamentary faction has the right to recommend at least 2 candidates.

(3) Members of the Court of Accounts shall be appointed by the Parliament at the proposal of the President of the Court of Accounts for a five-year term with the total vote of elected deputies.

(4) A person shall exercise the function of a member of the Court of Accounts for two mandates at the most, which can be consecutive.

(5) In exercising their mandates the members of the Court of Accounts are independent and immovable during its total term.

(6) Members of the Court of Accounts could be citizens of the Republic of Moldova with relevant higher education in economics or law and a work experience in the last tens years adequate for the activity of the Court of Accounts.

(7) The position of the President, the deputy President and the member of the Court of Accounts is incompatible with any business activities, or part-time jobs with the exception of teaching, scientific or other creative work, carried out in their spare time.

(8) Before taking the office the President, the deputy President and the members of the Court of Accounts shall make the following swear: “I swear to faithfully serve the Republic of Moldova, to observe the Constitution and the laws of the Republic of Moldova, to protect the state property, democracy and the welfare of the people”.

(9) A vacancy of a member of the Court of Accounts may take place in the following cases:
a) resignation;
b) expiration of the mandate term;
c) sentencing through a final court decision;
d) loss of citizenship of the Republic of Moldova;
e) health reasons;
f) reaching the age of 65 years.

Article 15. – (1) The President of the Court of Accounts proposes the Parliament for approval the candidate of the deputy President of the Court out of the members of the Court.

(2) The Parliament shall confirm a member of the Court in the function of the deputy President of the Court of Accounts exclusively for the duration of his mandate of a member of the Court of Accounts.

Article 16. – The President and the deputy President of the Court have the right to attend the sessions of the Parliament and the Government.

Article 18. – (1) A function of an employee of the Court of Accounts is incompatible with any other paid public or private function.

(2) The Parliament may recall the President and the members of the Court of Accounts of their office ahead of term by majority vote of elected members of Parliament in the event of unsatisfactory fulfilment of their official duties, violations of law or excess of their commission.

Article 19. –The employees of the Court of Accounts shall be appointed and relieved of their functions by the President of the Court.

Article 20. – In carrying out controls the Court of Account may contract highly qualified experts to deliver consultation and share expertise in different areas and remunerate them in compliance with the law in force.

Chapter III
CONTROL FUNCTIONS OF THE COURT OF ACCOUNTS

Section I
General

Article 21. – (1) The Court of Accounts shall exercise control over the formation, management and use of the public funds and the public property management. As the case may be the Court of Accounts may seek services individual auditors or audit companies. The control shall be carried out in line with constitutional provisions and modern accounting methods.

(2) By carrying out control the Court of Accounts is pursuing observance of laws and implementation of the principles of rational use, expediency and efficiency in managing public tangible assets and funds.

Article 22. – In exercising its functions the Court of Accounts shall carry out control over the following:

a) Formation and use of the state budget, the state social insurance budget funds, the budgets of the territorial administrative units and the funds of compulsory medical insurance;

b) Formation, uses and management of the special funds and the state treasury funds;

c) Public debt formation and management, compliance with the state guarantees for domestic and foreign loans;

d) The public institutions use of grants and funds allocated by the external donors for the implementation of common programmes with the Republic of Moldova;

e) Use of budget allocations for investment purposes, as well as subsidies and other forms of state financial assistance;

f) Execution, justification and efficiency of intergovernmental treaties in the economical financial area;

g) Process of the ownership change and privatisation of the public property;

h) Activity of other control bodies and of the internal control bodies;

i) Money issue, use of public loans and foreign exchange;

j) Other activities, stipulated by organic laws to fall under the responsibility of the Court of Accounts.

Article 23. The following shall be subject to the financial audit:

a) Office of the Parliament, office of the President of the Republic of Moldova, the Constitutional Court, the State Chancellery, the Supreme Court of Justice, the Economic Court, the Prosecutor General’s Office, the National Commission of Securities, the Central Election Commission.

b) Specialised central public administrative authorities, other administrative authorities, the National Bank of Moldova and the commercial banks with state shareholdings exceeding 50 percents.

Article 24.  – The Court of Accounts shall also carry out controls of the legal entities irrespective on their ownership status and legal charter if these entities:

a) Benefit of state guarantees on loans, subsidies and other state assistance;

b) Carry out management on a contract basis of the assets belonging to the public property;

c) Hold integral social capital or more than 50 percents of their social capital belongs to the state.

Article 25. (1) The Court of Accounts carries out subsequent controls in its office or at site, which include financial revisions, thematic controls and performance controls (audits).

(2)) Controls carried out in the office of the Court of Accounts shall be based on documents and information available in the Court of Accounts as well as on documents requested in a written form by the President (deputy President) of the Court of Accounts from the entity subject to control, or from other entity in possession of the needed documents, irrespective on its ownership, legal and organisation status.

(3) Controls at the site shall be carried out based on a control order and a control programme, signed by the President (deputy President) of the Court of Accounts.

(4) In the need to confirm certain evidence, which is not totally relevant, the President (deputy President) of the Court of Accounts shall issue decrees requesting verifying controls over any entity subject of control.

(5) The Court of Accounts shall make comments on the draft of the state budget law, the draft of the law on the state social insurance budget and the funds of the compulsory medical insurance for the respective year.

Section 2
Control procedures

Article 27
(1) The Court of Accounts shall control, either in its offices or in the field, the financial reports submitted by the controlled entities.
(2) The control/audit procedures and other related actions are defined by the standards (norms), developed and adopted by the Court of Accounts in compliance with the law in force.
(3) The Court of Accounts employees, responsible for the control procedures, shall draft control reports (documents) on the identified financial violations and submit them to the controlled entity for commentaries and objections.
(4) The control reports shall be examined by the Court of Accounts in the presence of representatives of the respective public authorities. The failure of public authorities’ representative to show up, unless they have well grounded reasons, cannot prevent the Court of Accounts from passing the decree, if they have been notified in the stipulated way.
(5) The Court of Accounts shall rule decrees on these reports in compliance with the law in force. The Court of Accounts decrees represent the main method of providing the controlled entities, their superior bodies, and the society with independent information, solutions and guarantees on the legality, conformity and accuracy of the conducted economic and financial transactions and drafted financial reports, as well on the economy, efficiency and effectiveness of the use of public assets by the controlled entities. The decrees shall be clear and well documented.
(6) The decrees shall be concise and summarize the control results and evidence. The draft decrees shall be developed by the heads of Court of Accounts departments (directorates) on the base of control reports (documents), developed by controllers. They shall consist of the following items:
a) title of the decree;
b) overview on the background of the controlled activities, including the institutional background;
c) objectives of the controlled entity’s activity;
d) description of the methodology of evidence collection and analysis, specifying their sources;
e) activity assessment criteria;
f) the control findings or, at least, the data deemed as relevant for the decree addressees and users;
g) conclusions referring to the control objectives;
h) requirements and recommendations about the necessary corrective actions.
(7) The recommendations shall be made only if the control process identifies possible and efficient remedies for the committed violations. They shall present the main directions of the proposed changes, avoiding a detailed description. The draft decree shall clearly stipulate the name of the person, who committed the violations and the name of the person, responsible for their remediation.
(8) The draft decree shall be examined by the Court of Accounts members together with the control team, project authors, representatives of the controlled entity, and other people, as decided by the President of The Court of Accounts. The Court of Accounts members can request the opinion of independent experts (specialists) in form of consultations, conclusions, or recommendations.
(9) The Court of Accounts members may modify the conclusions and recommendations stipulated in the draft decree if the controlled entity or another person submits new evidence. The draft decision may be revised and changed substantially, if the new evidence greatly impacts the control findings. In such a case, the new decision shall be re-examined together with the controlled entity.
(10) The Court of Accounts decrees are official documents and shall be executed by all public authorities and the sanctioned legal entities and individuals.
(11) The decrees passed by the Court of Accounts in relation to control reports shall be submitted to the budget executors of the appropriate public authorities. The violations shall be reported to competent superior body and, if needed, to the appropriate financial and legal authorities.
(12) The heads of public authorities shall inform the Court of Accounts about the undertaken measures in relation to the violations revealed during the control process.

Chapter IV
Other Functions of the Court of Accounts and Obligations of its Employees
   
Section 1
Other Functions of the Court of Accounts
Article 28 – Besides the control function, the Court of Accounts shall:
a) develop and approve regulations and documents on the Court of Accounts internal organization and its annual financial control programme;
b) comment on the draft state budget,  draft state social insurance budget, and draft compulsory health insurance funds;
c) change its internal organization, in compliance with the law in force and  within its legal competence and budgetary constraints;
d) discuss and submit its own draft budget as to integrate it into the state budget;
e) appoint heads of departments;
f) evaluate and analyze the activity reports of the Court directorates on a periodical basis;
g) demand penalization of people responsible for violating the use of public financial resources and request compensation of the country damages after providing the involved people with the opportunity to ground their position and justify their actions related to the  violations revealed during the control;
h) submit the revealed cases of financial violations with constituent elements of offences to the Centre for Combating Economic Crimes and Corruption;
i) request the dismissal of people who either committed severe law offences or failed to comply with the law.

Article 29
 The Court of Accounts shall carry out its duties having a membership of at least 5 members, and shall pass decrees on the conducted controls with the majority vote of its members.    

Article 30
(1) The President of the Court of Accounts shall:
a) run and organize the activity of the Court of Accounts, manage the financial resources according to its approved budget;
b) represent the Court of Accounts interests in the relations with public authorities and agencies, as well as with relevant domestic and international agencies, and guarantee stable relationships with them;
c) summon and chair the Court of Accounts sessions, monitor the implementation of the adopted decrees;
d) submit the Court of Accounts reports and comments to the Parliament;
e) appoint and dismiss the employees of the Court of Accounts in conformity with the law in force, including the employees engaged on a five-year individual contract;
f) guarantee order and apply disciplinary sanctions, if needed, in compliance with the law in force.
g) report to the Parliament about vacancies of the Court of Accounts, approves the list of vacancies, which will be occupied on a contest basis;
h) establish control teams that will operate only during the implementation period of the assigned tasks;
i) carry out the controls requested by the Parliament, as well additional controls that are not stipulated in the annual financial control programme of the Court of Accounts;
j) announce and carry outs contests to occupy the vacancies of the Court of Accounts directorates and departments;
k) authorize the conclusion of labour and service contracts, as requested by the Court of Accounts operation.
(2) In the absence of the President of The Court of Accounts the duties stipulated in paragraph (1) shall be carried out by the vice-president of the Court of Accounts.

Section 2
The Obligations of the Court of Accounts members
Article31
(1) The Court of Accounts members shall:
a) fulfil their obligations impartially and in compliance with the Constitution;
b) vote for or against the Court of Accounts documents; abstaining is not allowed;
c) report in writing to the President of the Court of Accounts about any situation that might run against the exercised mandate;
d) avoid any involvement in commercial advertising;
e) not participate in any activities contradictory to the principle of independence and dignity of the Court of Accounts membership;
f) keep the secret of vote and consultation;
g) submit, in compliance with the law, the income and real estate declaration.
(2) If the Court of Accounts member breaks any of the obligations stipulated in paragraph (1), he/she shall be dismissed.

Article32
The Court of Accounts members cannot be investigated, detained, arrested, or sanctioned with administrative and juridical penalties, unless requested by the General Prosecutor.

Chapter V
Rights, Obligations, and Liabilities of the Court of Accounts employees

Article 33
The Court of Accounts employees have the right, on the basis of the authorization issued by the CA President, to:
a) request any document or other materials related to the economic and financial activity of the public authorities.
b) freely enter the facilities, warehouses, shops, production halls and other places possessed by local authorities to check the existence and use of the state owned material and financial resources;
c) receive written and verbal explanations and copies of the documents related to the public authority’s activity from the directors and other responsibles of public authorities.
d) withdraw documents and seal the places where documents, money and other goods of the public authorities are stored;
e) request copies of financial excerpts from the National Bank and other commercial banks, where the state owns a share in the equity.

Article 34
The Court of Accounts members and employees are not allowed to:
a) be members of political parties or carry out public activities with a political character;
b) reveal the state, working, trade or individual secret.

Art 35
The Court of Accounts employees bear responsibility, in compliance with the law in force, for misrepresentation of the control results, submission of wrong data to the Court of Accounts or other institutions.

Chapter VI
FINAL PROVISIONS

Article 36
(1) The Parliament, Moldovan President, Government, ministries and departments, other public authorities, the National Bank shall submit to the Court of Accounts, on compulsory terms, the adopted normative acts, which refer to the operations listed in Article 22.
(2) The public authorities shall help the Court of Accounts officials to fulfil their tasks, assist them during the controls, and provide them with space, transportation and communication means, depending on the control requirements.

Article 37
The Parliament shall monitor Court of Accounts’ observance of the budget.

Article 38
Law no. 465-XII dated January 31, 1991 on the State Control Department of the Republic of Moldova shall be annulled.

Parliament Chairman-Petru LUCINSCHI
Chisinau December 8, 1994
No. 312-XIII.


No comments:

Post a Comment