Podgorica, 17 November, 2014
The version of the text that was debated at a public discussion on 28 February 2014, in many of its aspects is unusual and has numerous amendments that have emerged as solutions only in the text of a Draft Law on Prevention of Corruption adopted by the Government of Montenegro. Thereby the work of the Working Group in which representatives of NGOs (including CCE) have participated was rendered meaningless, as well as the public discussion that was held regarding the Draft of the aforementioned Law. It should be noted that the members of Working Group from the NGO sector did not participate in the final creation of text proposed to the Government.
CCE perceived participation in this Working Group as an opportunity to contribute to creation of a quality comprehensive and extremely important law that is aimed at prevention of corruption and fight against corruption, namely, the prevention and prosecution of criminal offenses of corruptive practices. Unfortunately, the very name of the Draft Law, as well as the content, did not provide necessary guidelines for systematic fight against corruption. Prevention of corruption can be conducted only if the country has coped with endemic corruption, which in Montenegro is not the case, and thereby both words fight and prevention should find their place in the name itself.
The beginning of work of this Working Group was not preceded by a detailed analysis of the situation with the guidelines for the preparation of the Law. A comprehensive analysis which gives an objective insight into the extent of the work of anti-corruption institutions, their current status and personnel capability, the exact choice of institutions that will become part of the Agency, existent Agency’s founder, etc, would significantly help for the Working Group itself to be more effective, but unfortunately this basis did not exist.
Draft Law on Prevention of Corruption was supposed to be adopted even in March 2014, and the Law was supposed to be passed by the end of June, which would provide an opportunity for creation of the necessary personnel, budgetary and spatial preconditions until December of 2015 so that this public body would commence its work. Due to this, and many others delays in the implementation of the Action Plan for Chapter 23, the revision of the Plan of Montenegro’s accession to the EU 2014-2018 started aiming to prolonge the deadlines and further specifications of measures and steps for their implementation. It is important to underline that the Working Group, since its formation, has been working quite intensively and has promptly produced the first draft, and that further delay was largely caused by lack of political will to enter into essential institutional developing of an efficient and effective system for fight against corruption at all levels, with special focus on corruption in the sphere of holders of the highest public and state functions. An obvious prolongation of deadlines for the implementation of the Action Plan for Chapter 23 represents some good news for many high officials.
In the light of the aforementioned are also deficiencies in the Draft Law on Prevention of Corruption that should, through the work of the Agency for the Prevention of Corruption, provide operations of prevention of conflict between public and private interests, restrictions in the exercise of public functions, revision of reports on income and assets of public officials, acting upon complaints of whistleblower and whistleblower protection, control of lobbying as well as funding of political entities and their election campaigns. It is envisaged for this institution to be an autonomous and independent body in its work, which raises the question of separation of powers and the character of the Agency itself. In addition, it is difficult to assess in what manner will this agency position and impose itself to other related anti-corruption government bodies.
Detail remarks and suggestions in relation to certain articles of the Draft
Article 1, paragraph 1 – it is necessary, within the basic provisions, and later within procedural ones, before word “protection” to add words “external and internal” and after word “protection” to add words “whistleblowers”, “and”.
Explanation: Since in Montenegro there is no law on the protection of whistleblowers, it is necessary to stipulate in detail the protection of whistleblowers by this Law, and clearly differentiate external and internal protection. Whereas the procedural part of the Draft recognizes the term whistleblower, this term must be found also in the basic provisions.
Article 6, paragraph 1, point 4, after words “common-law spouse” should be added words “and a former maried spouse”.
Explanation:</em> The Law should be an answer to the practice, and it is also an often practice in Montenegro that because of the danger of hiding assets and income, the same are being protected by a divorce, thereby the former spouse is retaining them and protects the interests of the other one.
Article 8, Declaration of existence of conflict of interest, it is necessary to amend paragraph 2 so that the same reads: “Obligation to provide a declaration referred to in paragraph 1 of this Article shall also apply to MPs and councilors, as well as to all those public officials whom the exemption rules apply as prescribed both by special acts, and this Law. ”
Explanation: Paragraph 1 of Article 8 has a meaning only if under the same conditions includes all public officials, because the manner in which it was derived by paragraph 2 it has enabled a broad interpretation and space for manipulation. Considering that special laws stipulate conflict of interest for the mentioned persons, it must be emphasized in paragraph 2 that the said conflict of interest referred to in paragraph 1 of this Article is also prescribed by this Law. This is one of the stances from which it is clear that there does not exist a key mechanism of control of conflicts of interest of public officials.
Proposal: It is necessary to restore in the Law one of the solutions of the Working Group – institute of Anti-corruption clause. There is not even one obstacle for the anti-corruption clause to be stated in all contracts concluded between authorities and other legal entities, and that the Agency keeps separate records for contracts which value exceeds 10,000 EUR and continuous verification of compliance with this legal norm. Furthermore, by this clause it would be necessary to identify also which contracts shall be promptly published on the website of a state authority, and which may be kept a secret, but with a possibility that the Agency has insight into contracts that are not published publicly in order to determine the compliance with the anti-corruption rules.
Article 9, paragraph 4 limits the income of public officials in relation to performing duties in several committees or working bodies.
Comment: This norm should be specified and limited solely to public officials who are members of political parties and political bodies and who have been appointed to such a body based on political and not expert grounds. Namely, there are also public officials appointed by the Government as experts and not on political grounds that under Article 9, paragraph 4 may be paid for their scientific and expert work in several working bodies and repeatedly.
Article 14, paragraph 4 should be deleted and envisaged as a penalty provision in the event of violation of paragraph 3 of Article 14, which stipulates that a public official who performs a public function shall not conclude a contract with the company or other legal entity in which he and a person related to him has a private interest.
Furthermore, the solution of Article 21, paragraph 1 represents a progress compared to certain earlier proposals, but it should be amended by prescribing the following obligations:
- professional activities of an official during the three-year period before he/she became an official, membership in the said period in any of the boards of public companies and institutions, non-governmental associations/foundations, as well as other business activities of an official;
- membership on the boards of public companies and institutions, non-governmental associations/foundations or other bodies, or participation in other activities, regardless of whether they are paid or not;
- any other financial interests that could affect the performance of an official.
In Article 21, paragraph 2 in addition to enumerated data to be reported in the Report of the public official, the Agency will now as an integral part of the Report request a Statement of a public official by which he/she may give consent to the Agency for access to information of all bank accounts and other financial institutions in accordance with laws regulating the banking operations, which has not been envisaged by the Law on Prevention of Conflict of Interest so far.
Comment: it should be examined whether this provision affects the jurisdiction of the courts and whether this is a violation of the Criminal Code, and if not, the norm should be prescribed as obligatory, as thus defined it is redundant and leaves space that a public official may and must not provide the said consent for check of his/her bank accounts. Therefore, in Article 21, paragraph 2, before the word “give consent” the word “may” should be deleted and instead of it the word “must” added.
Explanation: Paragraph 2 shall be conceptualized as obligatory, hence a public official then must, even if he/she does not want to, submit the consent tp the Agency, if there is a reasonable suspicion that illegal actions in relation to work of an official exist. Such designed norm would allow the unhindered work of the Agency in the part of obtaining an insight and checks of bank accounts of officials.
Article 24, paragraph 1, point 3, instead of the word “family” should be written words “shared household”, and after the word “law” shall be “and information about property and income of former spouse and children who do not live in the same household”.
Explanation: The objection is that submission of a report on income and assets of a public official does not therefore contain also the “information about property and income of former spouse and children who do not live in the same household”. Namely, such data should be found in the Report, but certainly not made public as well as data of close family members, except the data of an officials himself/herself. Such a solution is imposed by international laws and practice of the European Court in Strasbourg so far. Such standards would be required precisely for the reason of possible hiding and transferring of income and assets on the same, for the purpose of securing oneself subsequently. It is worrying that, given the Montenegrin context, the draft law does not recognize the need to report assets of state officials’ children who do not live in a family community, which is a serious and it seems a deliberate omission in relation to reality and needs of the Montenegrin society.
Article 30, the procedure of checking the data from the Report referred to in paragraph 3 should be specified by the Law. It must be clear which body and how is it determining the “real income” of a public official. This text should have clearly specified criteria for determining the real income. To these, and previously mentioned system failures, representatives of CCE have been indicating from the beginning of work on the text of the Law on Prevention of Corruption.
Administrative investigation has remained unperformed and understated, i.e. in Article 35 had to be rather more precisely derived the Agency’s right to obtain all necessary data and notfications, as well as the necessary documentation. Leaving a possibility that primarily state authority from which the Agency requires data and notifications can significantly obstruct investigative actions, can be esteemed as intention of the proponents to leave space for possibility of obstruction of any “undesirable” processes through the possible political impact on the present subject. Article 35 possess open grounds for political influence which is a significant limitation of this Draft.
Article 42, which stipulates a legal effect of decision contains too much of the narratives. This article recognizes the need for notifying the administrative body where a public official performs a public function and a body responsible for the selection, nomination or appointment of a public official, in order to initiate procedure for dismissal, suspension or imposition of a disciplinary measure. This is also a fulfillment of one of recommendations of the European Commission, but a norm defined in this manner will in practice cause various kinds of “creative” interpretations, and a problem of double punishment will occur in particular, while there are also expected problems in the very implementation of mechanism for exchange of data designed by this norm between the Agency and the competent authorities.
In Article 76, paragraph 2, – proposal: as a responsibility of those obligatory for making plans for integrity must be determined monitoring the efficiency and effectiveness of specific plans, as well as accurate evaluation of the efficiency and effectiveness of plans once per year.
In Article 78 remains underived who is establishing – forming the Agency as an autonomous and independent body.
Proposal: In order to establish organizational and functional independence of the Agency, which should be preceded by defining the director and Council of the Agency as a body, it is essential for the Council to be professional, supervisory, and not an advisory body to the Agency, as the draft is envisaging. Specifically, the Law must prescribe that the Council performs control of work of the Agency’s director, and not to create a self-contained body and to draw someone a position of a director with unlimited power. Furthermore, Council members must be professionals for whom this is one and only work position with a full-time, in order to evade improper influences. It is essential that the members of the Council of the Agency are proposed by authorized nominators, and that they are merely verified by the Assembly because this is a key of control and independence of this body.
Comment: Subsequently passed decision after public discussion, in Article 85, paragraph 5, which provides that non-governmental organisations which “have at least three years of experience in the fight against corruption and implemented at least one project in the area of anti-corruption in the previous year”, suggest a joint representative for a member of election commission from the ranks of civil society “, is entirely unacceptable. Explanation: This solution is in its entirety unacceptable and incomparably worse than the previous one, going towards the exclusion of NGO sector, since it is clear that the creator of this norm does not recognize concept of NGO sector’s operation. The previous solution could have been improved in a manner that two NGO representatives would be envisaged. In addition, in order to have a unique practice of electing the members of NGO sector in councils and other working bodies, it is necessary to apply the Regulation governing the procedure for election of members of the NGO sector in working groups and commissions.
CCE agrees with commentary of experts that Article 83, paragraph 1, point 2, which provides that “ten years of working experience of which at least five years experience in the conduct of operation in the area of fight against anti-corruption or human rights; should be changed because these “requirements are too stringent”. This limits the possibility of nomination only for the currently existing bodies, police or several members of the academic community.
Comment: By norm prescribed in such a manner certain positions are clearly drawn in advance for certain persons, and this fundamentally inducing a law with constructional error which is extremely worrying.
Conditions referred to in Article 84 are too stringent, and partly even discriminatory. If there remains condition from the Article 84 that “for a member of the Council of the Agency can not be elected a person who has in the last 10 years been performing or still performs: duties of an MP or councilors; function of a member of the Government; official of a political party (the party president, member of the board, their deputy, member of the executive and the central board and other party official)”, the scope of qualified and skilled personnel in the Council will be significantly narrowed.
Proposal: The condition of two years is a sufficient criterion, with the addition that was in earlier versions of texts, that even the persons that were chosen, nominated or appointed by the Government and Parliament of Montenegro during the said period of two years can not be elected in the Council, which would leave an equal opportunity for nomination in the same, and by thus approved norm selective lustration of public officials would be avoided.
Comment: Herein again the concern remains whether it is (un)intentionally left a possibility to some high government officials and employees to be on the Council, while the same is being prevented to other categories in the Montenegrin context.
Proposal: In the Article 89 should be added that the President of the Council shall be elected by the members “according to the rules of procedure of the Council”. In addition, in the Article 89, paragraph 2 shall determine the quorum of Council members who will be maintaining the sessions. Furthermore, paragraph 4 of Article 89, which prescribes that “regarding the affairs from the jurisdiction of the Council of the Agency, President of the Council shall inform the public as a rule”, should be added after the word Council “But also all the members of the Council have the right to communicate with the public.”
Article 96, paragraph 2 Salaries of employees in the Agency should be harmonized with the regulations about public officials and employees referred to in paragraph 1 of this Article, or it should be provided in paragraph 3 that the Director of the Agency shall be entitled to a salary the words “in the amount which is determined by the Protector of Human Rights and Freedoms of Montenegro” replace with words “prescribed by a special law regulating this area”.
Explanation: Adoption of the Law on salaries of public officials and employees is in the process and will commence to be applied to the moment of establishment of the Agency, so that salaries of employees of the Agency will be stipulated by the said Law.
Comment: Penalty provisions for fines for violations of a public official are entirely unacceptable and too lenient. Specifically, the potential future benefit of a public official by exercise or concealment of an action is much greater than the maximum prescribed sentence of 2,000 EUR for which the aforementioned will often be very willing to pay such a penalty. Hence, these types of penalties are completely uncoordinated and unfinished and in except for fines, institutes such as dismissal, suspension, discipline, responsibility are not recognized, etc. Furthermore, there remains unclear why is the reason that categories of public officials were not constructed and also penalty provisions in accordance with the categories. It should be noted that a rather different social consequence is caused by potential request for dismissal of MPs and councilors, and the Law must take into account the reality. In addition, this Draft does not recognize suspension of the appointment or nomination due to failure to fulfill obligations of a public official under the Law. Penalty provisions must comply with the text of the Draft Law and correspond to the needs of prevention of conflict of interests and the fight against corruption, which means that the penalty provisions must be a kind of punishment system classified according to categories and importance of holders of the state functions and on the severity and type of penalty imposed, both individually and cumulatively. Penalties must be: fine ranged with values, dismissal, suspension, prohibition of selection and appointment. Everything must be binded in the penalty system, system of responsibilities.
Certain results may be expected only with the establishment of the Agency for Prevention of Corruption. Practice will soon impose considering amendments to this law, opening the real scale of problems in the implementation and enforcement. However, even this text of the law, in case the suggestions and recommendations that come from the NGO sector are acknowledged, provides an opportunity for progress in the fight against corruption. Certainly, this must be accompanied by the political will and the necessary coordination of work of key anti-corruption bodies forefront with the Agency as an umbrella institution for fight against corruption.
Related legal texts
This Draft is closely connected to several other law texts of which it is particularly important to draw attention to the Draft Law on Amendments to the Law on Prevention of Conflict of Interest.
Article 19 of the Draft Amendments to the Law on Prevention of Conflict of Interest replaces Article 38 of the current Law that was ultimately underived and confusing. Namely, the same article in the first paragraph only recognizes possibility of dismissal of a public official if by a final verdict violation of the law is determined, while the second paragraph of the same article, in addition to dismissal was recognizing also the possibility of suspension and disciplinary proceedings, so that the one who was interpreting the legal norm must have had a serious problem, since no matter how one interpret it, there is possibility to make a mistake in application.
Amendments to the Law on Prevention of Conflict of Interest as an interim version until the adoption of the Law on Prevention of Corruption represent an attempt of fulfilling the obligations imposed by the Progress Report of the European Commission. This Law has many incompletenneses, particularly systemic in nature, so that the Commission for the Prevention of Conflicts of Interest in addition to numerous subjective omissions in its work also objectively had obstacles in collecting information and data, which was leading to difficulties in the Commission’s work, and even to blockade in certain cases.
Of particular interest is the moment when the Commission’s decision becomes final. Then the Commission must inform the competent state authority that conducts the procedure for dismissal, suspension and disciplinary proceedings. These amendments led to partial normative progress and clarity in this area, but not to creation of the necessary basis for a more efficient fight against corruption. Amendments to the Law on Prevention of Conflict of Interest will not contribute that standards in this area will be completely complied with. This may be expected only after the establishment of the Agency for the Prevention of Corruption, which will have much more power, but also incomparably stronger institutional position. It is necessary to continuously indicate to unacceptable political influence on anti-corruption institutions and this is evident with the so-called “sensitive” cases. A Commission positioned in this manner was easier to obstruct politically, than this will be the case with the Agency.
Nowadays this is being consolidated and even if someone after reading the first paragraph was thinking that a public official in the case of indisputably established violations of the law will be automatically discharged, they were wrong, because the second paragraph of the same article is essentially abolishing it, and from now the whole uniformed and revised Article 38. Hence, it can be concluded that the amendments are more of a “makeup” of the existing legal solutions with opening the space for normatively potentially meet the recommendations of the European Commission, than a creation of a basis for substantial progress in the fight against corruption on high-level.
Boris Marić, Senior Legal Advisor Snežana Kaluđerović, Programme Coordinator