Adoption of the new Law on the Anti-Corruption Agency is still on hold – until the appointment of the new Agency director. This anti-corruption body was left without the manager in December 2016, which was followed by a failed attempt of the Agency Board to elect a new one.
Meanwhile, terms of four Board members expired, which means that out of nine Board members there are only two now. As passing decisions takes a majority, that is five votes, the Board may not pass any decisions prior to election of new members.
Deadlines for adoption of the Law have been put off several times in the last three years, while the current draft law was submitted for public debate in October 2016.
The Agency has an important role in fight against corruption as it controls financing of political parties, officials’ property, their ownership in private companies, as well as conflict of interest while performing a public function.
This institution stated to Center for Investigative Journalism of Serbia (CINS) journalists that the aim of the new Law is to strengthen their efficiency and independence, but also to impose stricter rules in relation to responsibilities of officials. They perceive the delay as “absence of will to accelerate the process“.
Verka Atanasković, acting Agency director, and Jovan Nicić, senior advisor to the Prevention Sector, said that they see delay in adoption of the law as “absence of will to accelerate the process“.
Ministry of justice representatives state that they would like to have approval of the new manager prior to taking the following step, adding that without the opinion of the Agency director they could not possibly develop the final text of the Draft law, which could considerably differ from the current one.
Drafting of the new law was marked by delays since the very beginning – firstly in establishment of the working group the meetings of which were then frequently postponed due to the large number of members needed for a consensus. In its work, the group was also slowed down by introduction of proposals different from those proposed by the Agency.
According to CINS interviewees, what lacked at the meetings was general consensus in relation to numerous provisions of the new law, which is why composition of the Draft was inefficient.
Passing of the improved Law on the Agency was envisaged through several strategic documents: National Anti-corruption Strategy for the period 2013 – 2018, Action plan for implementation of the Strategy, as well as Action plan for Chapter 23 in accession negotiations for membership in the European Union.
In the 2016 Progress Report for Serbia, the European Commission established a severe delay in amendments of the Law and reiterated its finding from the previous year – that it is necessary that Serbia adopts the new Law on the Agency fast “with the aim to strengthen its role as the key institution for more efficient fight against corruption “.
No interviews with Ministry representatives
The Draft law on the Anti-Corruption Agency is the result of about 20 meetings of representatives of the Agency, Ministry of justice, other state institutions, and the civil sector, who were working within a working group to improve the current Law. When the working group completed the Draft, the Ministry of justice conducted a public debate from 1 October to 15 November 2016.
In the interview for CINS, Verka Atanasković, acting Agency director, and Jovan Nicić, senior advisor to the Prevention Sector stated the fact that within this period of time the Ministry had not organized a single meeting to present the Draft law to the public, and that the Agency later organized three public debates in three towns in Serbia.
Still, more than six months after the public debates, the Ministry has not yet filed the Draft law to the Serbian Government for further action.
The Ministry of justice did not provide CINS with an interviewee for this topic, because, as they say, one of the three representatives who participated in work of the working group is no longer an employee with this institution, while another one was on leave. Radomir Ilić, the third member of the group, was also not available for interview, even though last year he commented for CINS both the Draft law on the agency and functioning of the working group. Rather than having an interview, for which they claim they would have to gather several experts, representatives of the Ministry asked CINS journalists to file them questions.
Deadlines for adoption of the Law have been put off several times in the last three years
In their replies to the questions they state they believe it is necessary that the Draft law on Agency is approved by the future Agency director, which would be followed by harmonization of the Draft with recommendations and comments from the public debate, after which the final version would be completed and submitted to the Government for adoption. They explained that there is a possibility that the current Draft is significantly modified, stating the drafting of the new Law on enforcement and security “the draft of which was by 60% changed after the public debate“ as an example.
Representatives of the Agency do not agree this is an adequate reason for stalling the Law.
“Unfortunately, this all points to a passive approach on part of the Ministry and lack of willingness to accelerate the process and finally have the law adopted”, says acting director Atanasković. She adds that the work of the working group was based on the model law composed collectively by all members of the professional service of the Agency: “Thus, this may not be tied to one person and one manager, as this is primarily a matter of the institution “.
Nemanja Nenadić, program director of Transparency Serbia and member of the working group which prepared the Draft law, says that he understands the wish to take into account opinion of the new manager and Agency Board members, but that it is not necessary:
“I do not think it’s justified to postpone this matter, as it was not justified for this matter to have been postponed from 2014, when it was first planned, to the present date. (…) The law can be modified if something turns out to be bad, but this law in itself is an improvement in relation to the current one, so interest in favour of its passing is prevailing “.
Efficiency issues within the working group
Appointment of Board members
As the Agency Board is not fully convened yet, appointment of the director of this institution needs to follow a parliamentary session at which MPs would vote for the Board members. At the moment, the Board lacks seven out of nine members, and has operated with incomplete composition for a long time.
On Tuesday 13 June, the Parliamentary Board for justice, state administration, and local self-government adopted three proposals for Agency Board members; to be appointed, they need to be subjected to voting in the National Parliament. The three candidates include the joint candidate of the Ombudsman and the Commissioner for information of public importance and protection of personal data who was proposed in 2015, but whose appointment has been placed on the agenda of the Parliamentary board only now.
According to the Law on Agency, three Board members are nominated by the Government, Parliament, and President of Serbia, while he remaining six are nominated by the Supreme Court of Cassation, State audit Institution, Socio-economic Council, Bar Association of Serbia, the Ombudsman and the Commissioner, and associations of journalists.
Even though the new Draft law has extended some competences of the Board, the manner in which its members are nominated remained the same.
Nemanja Nenadić says that the working group around the proponents of the Board members did not come to an agreement: “The Draft did not introduce improvements in terms of independence of the Agency, as it could be observed with the proponents of the Board members. It did not bring this change forward, the current situation persists, and this is a drawback. In terms of this, there was no consensus“.
Back in 2013, Serbian Government allowed the Ministry of justice a period of 12 months to prepare the Draft and submit it for adoption. The deadline expired in mid- 2014 without anything modified, while representatives of the Agency composed a model law themselves in July of the same year and submitted it to the Ministry of justice.
In the beginning of 2015, the Ministry established the working group chaired by Tatjana Babić, the then director of the Agency.
“The working group encountered numerous issues at the very beginning, as it comprised 17 members, passing decisions and having consensus was very difficult”, says Verka Atanasković.
In the several following months, the working group was working based on the model law prepared by the Agency; nevertheless, the Ministry filed the Agency a proposal of the solution drafted after the Slovenian Law on integrity and prevention of corruption from 2011.
Agency representatives state that they were told this would be the starting point for work – even though amendments of the Law were already planned in Slovenia.
After a while, the Ministry gave this model up, and the working group resumed work on the previous one.
Nemanja Nenadić says the working group was too large, which is why it was “utterly inefficient”, while differences in opinions of the Agency and the Ministry presented yet another issue: “At least a half of provisions were not subject to general agreement. The Ministry and the Agency respectively had several representatives in the working group, and they mostly had opposed positions”.
When asked which issues they encountered in the course of preparation of the law, Ministry noted: “If the working group composed the Draft law and proposed its submission for a public debate, this unambiguously means that members of the working group found a common solution, if there had been any issues at all “.
They add that this Draft law presents a balance of position of all parties, and that “consensus of all members of the working group was achieved in terms of the essentially important provisions “.
Modifications of the existing Law
If the current Draft is adopted, the key modifications in relation to the current version of the Law would include better regulation of the issue of conflict of interest, accumulation of public functions, reporting on officials’ assets and property, as well as greater competences of the Agency.
Except for officials, their spouses, and children who are not of age, reports on assets and property are also envisaged to be submitted for their parents, foster parents, and children who are of age, as well as for other related individuals, where the Agency would deem it necessary.
“Experience of the Agency indicates that the current legal solution leaves considerable space for abuse and concealment of actual value of property and income of public officials“, reads the justification of the Draft.
Jovan Nicić from the Agency says that new solutions in different segments of anti-corruption policy, such as introduction of corruption risk analysis in institutions and compulsory training on ethics and integrity for officials and employees in the public sector, are also important.
Recommendations for dismissal of officials, should the Agency, for instance, establish that they were performing two incompatible functions at the same time, are not binding according to the current Law; still, according to Nicić, there has been no progress in this area:
“Then the public authority body which is obliged to act after the recommendation may ignore the recommendation, i.e. act contrary to it and fail to dismiss such an official from the other function.”
CINS journalists have earlier analyzed recommendations of the Agency, finding that in numerous cases institutions opted for not accepting them.
Even though CINS interviewees agree that adoption of the Law is necessary for progress in fight against corruption, they believe that there is still room for its improvement. In terms of possible improvements, they state greater independence of the Agency, demarcation of public and political functions to curb abuse of public functions, extension of the law to include persons who are not public officials but who have impact on decision-making such as advisors, and resolution of the issue of unregulated status of Agency employees.
The story has been produced under an EU funded grant, awarded in the Media Programme 2014. The contents of this publication are the sole responsibility of the Center for Investigative Journalism of Serbia and can in no way be taken to reflect the views of the EU.