General Law of the Superintendency for the Application of Trust Evaluation Tests

To approve Executive Agreement 005-2014 of the President of the Republic containing the list of essential articles of popular consumption in accordance with the provisions of Legislative Decree No. 2-2014 dated January 29, 2014.

This Decree shall enter into force as of the day of its publication in the Official Gazette "LA GACETA". Given in the city of Tegucigalpa, municipality of the Central District, in the Session Hall of the National Congress, on the eleventh day of the month of February of two thousand fourteen. MAURICIO OLIVA HERRERA PRESIDENT MARIO ALONSO PEREZ LOPEZ SECRETARY ROMAN VILLEDA AGUILAR SECRETARY To the Executive Branch. Therefore, Execute. Tegucigalpa, M.D.C., February 27, 2014. JUAN ORLANDO HERNANDEZ ALVARADO PRESIDENT OF THE REPUBLIC The Secretary of State in the Office of Economic Development. ALDEN RIVERA MONTES Legislative Branch DECREE No. 254-2013 THE NATIONAL CONGRESS.

NATURE OF THE LAW. This Law is of public order, of national interest and security and takes precedence over other laws or norms that deal with the matter to which it refers.

CREATION AND MISSION. The Superintendency for the Application of Confidence Evaluation Tests is created as a deconcentrated body of the National Council of Defense and Security, with technical, functional, administrative and budgetary independence, whose function is to apply confidence evaluation tests to public servants of the National Police, Public Ministry, Judicial Branch, Armed Forces of Honduras and officials who by Law, Regulation or mandate are subject to such tests, in order to guarantee the reliability of such public servants in their positions.

OBJECTIVE AND PURPOSE. This Law establishes the fundamental legal norms regarding the creation of the Superintendency of Confidence Evaluation Tests, with respect to its composition, mission, function, organization, direction, coordination and functioning, as well as to strengthen the image of the entities to which this Law applies, through permanent purging of their members.

DEFINITIONS. In order to determine the criteria for the proper interpretation of this Law, the following definitions are established:

• 1)

  INSTITUTIONAL CREDIBILITY: Internal and external perception of public entities regarding their work and functioning, in compliance with and observance of the Constitution of the Republic and the laws;

• 2)

  CONFIDENCE TESTS: These are the instruments applied to quantify the reliability of the public servant in the position he or she holds. It applies to field investigations, evaluations, statistics and other tools that facilitate measurement; and,

• 3)

  COMPETENCE FOR THE POSITION: It is defined as the experiences, knowledge, skills and characteristics needed in an individual for the performance of a function.

SCOPE OF APPLICATION. This Law shall apply to high-level government officials, candidates for Judicial Branch magistrates, prosecutors of the Public Ministry, the National Police, Armed Forces and at the request of the President of the Republic to officials of decentralized institutions, as well as officials who by law, regulation and mandate must be subject to the tests established by this Law.

PROHIBITION OF SUPPLEMENTARY APPLICATION. The supplementary or analogous application of legal instruments other than this Law or its Regulation is prohibited in the substantiation of the procedure for conducting confidence evaluation tests.

DATABASE. The Superintendency shall maintain a database containing all information of personnel working in the entities to which this Law applies, for purposes of control and follow-up; such registry must be completed within the deadline established in this Law or its Regulation. Consequently, the bodies are obligated to update this information once per year. The National Council of Defense and Security shall verify that the aforementioned information is administered in a confidential manner and with criteria of national security.

REQUIRING AUTHORITY. All public servants employed in the organisms and institutions of the State to which this Law applies are obligated to undergo confidence evaluation tests in relation to the position they hold, in order to continue in their functions. The practice of these tests may be ordered by the Superintendency or by the body or institution that exercises its function. The procedure carried out based on this Law shall be conducted independently of other administrative or judicial processes, whether of a labor, civil or criminal nature. The result of these processes, whether in favor of or against the evaluated person, shall not influence the procedure contemplated herein.

COMPOSITION. The Superintendency shall be headed by a Superintendent and the Units of: Toxicological Analysis, Psychometric, Socioeconomic, Patrimonial, Polygraphic and any other deemed pertinent for fulfillment of its objectives, shall be headed by coordinators. The Superintendent shall be appointed by simple majority of the members comprising the National Council of Defense and Security. The Units described above are responsible for providing the evaluation report in accordance with the specialty they hold; said report must be sent by the Superintendent to the corresponding body or institution within five (5) days for its effective implementation.

REQUIREMENTS. To be a Superintendent or Coordinator of the Units of Analysis of Confidence Tests, the following minimum requirements must be met:

• 1)

  Be Honduran by birth;

• 2)

  Be thirty (30) years of age or older;

• 3)

  Be of recognized suitability and honorability;

• 4)

  Have no criminal convictions, nor pending matters arising from prior criminal debts before taking office;

• 5)

  Hold a University Professional Degree;

• 6)

  Be in full exercise of civil and political rights;

• 7)

  Not have been convicted of any crime nor be under trial; and,

• 8)

  Satisfactorily pass the Confidence Evaluation Tests, academic evaluations and other requirements.

SELECTION. All officials of the Superintendency, prior to the exercise of their functions, must be submitted to the practice of Evaluation and Confidence Tests. The stability, professionalism and independence of such officials is guaranteed.

GROUNDS FOR DIRECT DISMISSAL. Officials and employees of the Superintendency are subject to the Civil Service Regime and may be dismissed for the following additional reasons:

• 1)

  When in a criminal process they have been declared guilty of committing a crime by means of a final sentence;

• 2)

  Participate directly or indirectly in partisan politics;

• 3)

  Have been sanctioned on more than two (2) occasions in one (1) year, for delay in fulfilling their duties;

• 4)

  Use of office to request any public or private office, information other than that related to evaluations in process in their office;

• 5)

  Reveal confidential information that has come to their knowledge due to the position they hold;

• 6)

  Use information from the exercise of their functions to obtain benefit for themselves or in favor of a third party;

• 7)

  Be a participant in organized or occasional groups within which its members are dedicated to illicit activities; and,

• 8)

  Use State property, especially databases and official documents to achieve improper benefit.

POWERS AND OBLIGATIONS OF THE SUPERINTENDENT:

• 1)

  Direct and administer the Superintendency;

• 2)

  Order the practice of confidence evaluation tests to necessary public servants of the Superintendency and of the institutions subject to this Law;

• 3)

  Send the evaluation reports to the corresponding bodies and institutions within the corresponding deadline;

• 4)

  Report periodically or when required by the National Council of Defense and Security, regarding the actions of the Superintendency; and,

• 5)

  Any other duties derived from the position.

FORMALIZATION OF THE INVESTIGATION. The evaluation begins with the issuance of a reasoned resolution ordering its practice, which must be notified to the public servant or to the Head of Human Resources of the institution where he works, which is mandatory compliance for the servant or official. In case of disobedience or unjustified absence of the server to the practice of the evaluation, this will constitute grounds for dismissal.

DAY AND TIME OF THE EVALUATION. The public servant must appear on the day, date and time designated by the Superintendence for the practice of confidence evaluation tests, likewise, must immediately provide all information, documents and other elements that are required for the realization of the evaluation, as well as any other element that he considers useful and pertinent to prove his performance in the position.

OPINION AND RESOLUTION. The coordinators of each Unit for Analysis of Confidence Tests have a period of fifteen (15) calendar days to issue their opinions. Once the corresponding Opinion is issued, it is remitted to the Superintendent and the latter issues the corresponding resolution, which, if the evaluated employee, official or public servant is governed by some special law that contemplates or regulates a special procedure derived exclusively from the failure of one or more confidence tests, in these cases the resolution must be issued in consideration of this special procedure and remitted to the head of the institution where the evaluated employee or official works so that he may proceed in accordance with it. The evaluated employee, official or public servant who is not governed by some special law that contemplates or regulates a special procedure derived exclusively from the failure of one or more confidence tests or that, while regulating, lacks clarity or effectiveness due to various limitations, inconsistencies or contradictions between extremes, shall be applied exclusively or subsidiarily, as the case may be, the procedure established in the present Article, applying especially the extremes and parameters contained in the following paragraph. The failure of one or more confidence tests implies the loss of confidence of the official or employee subjected to them; due to this, the Superintendent shall summon the investigated party to a hearing, personally, by Notice Board or by electronic means, indistinctly, which must be held within the maximum period established in the Regulation of the present Law, in which the employee, official or servant, if he appears, may present his arguments and defense making the statements he considers appropriate. If the explanations or statements presented were considered insufficient or impertinent or he does not appear at the hearing, the Superintendent may issue the respective binding resolution by which he expressly declares the loss of confidence and orders the immediate dismissal of the employee, official or servant in accordance with what is established in the present Law and its Regulation. This resolution shall be remitted to the head of the institution where the evaluated employee, official or public servant works so that he executes what is ordered therein and issues on his own the corresponding administrative act in this execution of what is ordered by the Superintendent. Against this resolution of the head of the institution where the evaluated employee, official or public servant works, only a Motion for Reconsideration may be filed, which may be filed within five (5) business days following personal notification, by notice board or by electronic means, indistinctly, and shall be resolved, in turn, within five (5) business days following the date of its filing. This final resolution may be notified personally, by notice board or by electronic means, indistinctly, and with it the administrative remedies shall be deemed exhausted. The Superintendent, by means of his resolution, may instruct the head of the institution in which the investigated party works and, temporarily, the application of administrative measures other than the termination of the investigated party, these being, the temporary suspension of his functions, transfer or assignment to another position, the practice again of confidence tests within a determined time, among others. Those employees, officials or servants who were separated as a result of a procedure exclusively derived from the failure of one or more confidence tests may not under any circumstance be reinstated to their positions of work, whether by administrative or judicial decision, and any official of any instance that contravenes this provision shall incur civil, administrative and criminal liability, as appropriate. However, if a firm judicial sentence falls in which the unjust dismissal of the employee, official or servant is determined, this shall have only the right to receive the corresponding indemnification. No provision contained in the Labor Code, Organic Law of the National Police, Law of the Police Career, Civil Service Law and its Regulation, Law of the Public Ministry, Statute of the Public Ministry Career and its General Regulation, the Law of the Judicial Career and its Regulation, or any other related or similar provision that regulates the National Police, the Public Ministry and the Judicial Branch, shall be interpreted or applied in such a way as to interfere with the permanent purification function of the Superintendence.

VOLUNTARY DISCRETION CRITERION. During the period established in the Regulation of the present Law, any member of the bodies or entities to which the present Law will be applied and who by voluntary decision does not wish to be subject to confidence evaluations may voluntarily request his termination, receiving in those cases fifty (50%) of the benefits and indemnifications to which he is entitled in accordance with Law.

OBLIGATION TO REPORT. Public and private offices have the obligation to provide the Superintendence of Confidence Evaluation Tests, attached to the National Council of Defense and National Security, the information and documentation that it requests and that are related to the tests being practiced, within a period of ten (10) business days.

EVALUATIONS CONDUCTED. The evaluations whose processing is in the condition of Dismissals initiated prior to the entry into force of the present Law shall continue their course in accordance with the legal precepts in force at the time of the evaluation.

ENTRY INTO FORCE. The present Law shall be applied or executed progressively in accordance with and within the specific periods established in the Regulation.

FINANCIAL PROVISION. The Secretary of State in the Office of Finance shall take the necessary budgetary provisions to provide the economic resources necessary for the implementation of the Superintendence of Confidence Evaluation Tests, attached to the National Council of Defense and National Security, as provided in the present Law, being able to resort for those purposes to the resources of the Citizen Security Fund prior to authorization and instruction of the National Council of Defense and National Security.

TRANSITION. The Direction of Investigation and Evaluation of the Police Career (DIECP) shall continue to fulfill its attributions in relation to the material practice of confidence tests until the Superintendence of Confidence Evaluation Tests, attached to the National Council of Defense and National Security, enters into functions, to which it must obligatorily remit all physical records, electronic documents, databases, documents, background information, information and other files that it has in relation to confidence evaluation tests conducted to members of the police career, henceforth fulfilling the other faculties and attributions that by law correspond to it.

The present Law must be regulated within a period of up to thirty (30) calendar days by means of the Secretary of State of the Presidential Office, prior to approval of its Content by the National Council of Defense and National Security.

ENTRY INTO FORCE. This Decree shall enter into force as of the day of its publication in the Official Gazette "La Gaceta". Given in the city of Tegucigalpa, municipality of the Central District, in the Session Hall of the National Congress, on the sixteenth day of the month of December of two thousand thirteen. MAURICIO OLIVA HERRERA PRESIDENT. FOR THE LAW RIGOBERTO CHANG CASTILLO SECRETARY GLADIS AURORA LOPEZ CALDERON SECRETARY To the Executive Branch. Therefore: Let it be executed. Tegucigalpa, M.D.C., January 24, 2014. PORFIRIO LOBO SOSA PRESIDENT OF THE REPUBLIC The Secretary of State in the Office of the Presidency. MARIA ANTONIETA GUILLEN