Fight against Corrutpion - November 2015

This article is an integral part of the Coalition prEUgovor report on progress of Serbia in Chapters 23 and 24 for the period from May 2015 to October 2015.

The National Assembly has adopted certain regulations that may influence the fight against corruption, but the opportunity to fully achieve anti-corruption goals was missed because suggestions voiced in the public debate and parliamentary amendments were ignored. Thus, the new Media and Public Information Act introduces the obligation to allocate funds for co-financing of programmes by way of a public bid, and also the rules on public access to information on state aid and ownership structure. However, this law, unlike the 2011 media strategy, does not include rules that could provide public access to other information on media financing and the bulk of information will be available on request only, not proactively. The amendments to the Civil Servants Act are another example of a new deadline being set to eradicate the long-running and illicit practice (since 1 January 2011) of appointing civil servants to positions (e.g. assistant ministers) without advertising the position publicly, but the deadline for doing so was, for no reason, too long. Hence, depoliticisation has been put on hold once again. The most problematic provisions (the Government’s ability to choose any or none of the three candidates) were not changed at all, and the amendments to the State Administration Act now formally make chiefs of administration districts political appointees using the cynical explanation of the “possibility of cooperation” with state authorities. The new Privatisation Act also fails to remove the risk of corruption, because a large amount of discretionary powers have been retained when it comes to making decisions on the choice of procedure. The Ministry of State Administration and Local Self-Government published a draft Action Plan for public administration reform which envisages, inter alia, an analysis necessary for public administration “optimization”. The same Ministry published a draft of the Inspection Supervision Act (open public debate), as well as several drafts pertaining to local self-government. The Justice Ministry published “the second draft” of the Whistleblower Protection Act, which is an improvement on the previous version of the same act, but remains, in many important segments, more substandard than the original working document - the model act which was published a year ago by the Information Commissioner. A very alarming occurrence is the increasing trend of seeking “European legitimation”, which comes down to harmonisation with minimal standards, for anti-corruption reforms and passing of regulations, while at the same time public debates, during which the local professional public should voice their opinion are completely circumvented (contrary to the State Administration Act and Government’s Rules of Procedure) or treated as being of secondary importance. The lack of public debate and enactment of laws in summary proceedings - laws presented as European but of a questionable quality.

The decision to form the Coordination Body for the implementation of the Action Plan to administer the National Anti-corruption Strategy 2013-2018 is not precise enough with regard to this body’s jurisdiction, leaves room for interpretations with the aim of extending the Government’s jurisdiction to other branches of government and independent state authorities, which may create confusion with those bound by the Strategy in terms of reporting on the implementation of the Action Plan.

On the one hand, this Decision provides no answer to the question whether the executive power has had any problems so far regarding implementation of the Strategy and Action Plan that could have been handled in no other way than by placing the Prime Minister in charge of coordination. The only thing we were able to read was that “it was requested by the EU.” The Decision does not provide the Coordination Body with clear authority in case there are problems with implementation of the Action Plan that need to be solved - e.g. in cases where a Ministry fails to prepare their opinion or draft law within the envisaged timeframe, where a Ministry notices that the Action Plan is incomplete, where several Ministers publicly voice opposing views on handling the same matter (e.g. on implementation of the Public Companies Act) etc.

On the other hand, the Decision leaves room for interpretation that the executive power wishes to coordinate affairs that fall under the jurisdiction of the authorities which are not subordinated to it - judicial authorities, local self-government, independent state authorities (including the Anti-corruption Agency which is tasked by the law to supervise the implementation of the Strategy and Action Plan) and the National Assembly itself, which passed the Strategy (and which is also bound by the Action Plan).

The cause of this problem originates from the very text of the Strategy (chapter 5.2.) of which the TS gave warnings during the development and made concrete suggestions to overcome the problem, which were not taken into consideration.[1] The oversight of Strategy and Action Plan implementation is, according to both the Strategy and the Act (on Anti-corruption Agency) the exclusive jurisdiction of Anti-corruption Agency. All those bound by the Action Plan report to this independent state authority on what has been done so far. On the other hand, chapter 5.2. of the Strategy envisages that within the government, coordination is implemented by the Justice Ministry, and that this coordination includes "mutual communication, exchange of experience and information". The same chapter mentions "trimestral meetings with state authorities ", which could refer, having in mind the Ministry’s authority to coordinate “within the Government” only to those state authorities that work within the executive branch of the power. However, that this obligation to coordinate includes other state authorities has so far been interpreted groundlessly, too.[2]

The Government’s Decision removes this coordination from ministerial level and places it at governmental level. Such solution is indeed contrary to the Strategy, but may make sense in principle - for example, if the Justice Ministry has so far had problems to coordinate anti-corruption activities with which several ministries are tasked (on which there have been no public announcements), it is to be expected that such problems between ministers may be resolved by coordination involving the Prime Minister. However, the essential problem with the Decision is of a different nature - in it there is talk about "directing the affairs of state authorities", not limited to executive power (article 2).

The Coordination Body comprises the Prime Minister, Justice Minister, Finance Minister and a member of the Government’s Anti-corruption Council, and it is stated that "other members of Government and directors of relevant state authorities may take part in the work of the coordination body" (article 3). Further on there is talk about participation on behalf of state secretaries from the Ministries of Justice and Finance, and about the state secretary from the Justice Ministry being in charge of “coordination of relevant state authorities for the needs of the Coordination Body” (article 4), convening once in six months, which could mean that this state secretary performs coordination between two meetings of the Body, though this is not explicitly stated. Article 5 states that "state authorities are in charge of implementing the Action Plan" and are bound to appoint "one of their officials to communicate with the state secretary from the Justice Ministry and that the state secretary and these contact persons should meet at least once in three months" with the aim of monitoring and fulfilling the obligations envisaged by the Action Plan", and that the state secretary may have bilateral meetings with contact persons (article 6). As can be seen, these provisions do not differentiate between authorities within executive power and other state authorities.

Article 7 talks about "reporting on compliance with measures from the Action Plan", where the term "relevant state authorities" is once again used without differentiating between executive power and all those bound by the Action Plan. This reporting is performed "via" Justice Ministry and the Government’s Anti-corruption Council, which means that reports are made both to the Ministry and the Council (as a reminder, in accordance with the Strategy and the Act, there is an existing obligation to make reports to the Anti-corruption Agency). As for the authority of the Coordination Body, only this is clearly envisaged - "Coordinating Body may suggest that the Government make decisions with the aim of the implementation of the Action Plan" (article 8). Administrative and technical support is provided to the Coordinating Body by the Justice Ministry and Government’s Anti-corruption Council (article 9). There is also talk about appointing state secretaries, Council member and contact persons from other authorities "within eight days of entering into force of the Decision" (article 10).

Recommendations:

• The practice of adopting laws under urgent procedure unnecessarily and unjustifiably needs to be stopped, given that this hinders public debate and has a negative impact on the quality of laws passed.
• The Government’s Decision on forming the Coordination Body for the implementation of the Action Plan to administer the National Anti-corruption Strategy  for the 2013-2018 period should be made more precise as soon as possible, so that it clearly refers to coordination within the executive power, which is undoubtedly necessary.