Centre for Civic Education (CCE), at the invitation of the Anti-corruption Committee of the Parliament of Montenegro, submitted general comments on the justification of amendments to the Law on the Prevention of Corruption, with the position that it does not support any ad hoc changes, but insists that the work should be done comprehensively to improve the quality of the entire text.
The CCE believes that this is one of the systemic laws that aims to protect, fight and prevent corruption, i.e. prevention of acts with corrupt actions, as well as that in these seven years of its application a series of vagueness and parts that require alignment with challenges in practice have been identified. Therefore, it is necessary to do a detailed analysis based on which the fundamental changes of this legal document would be approached, with the involvement of the interested public.
CCE also reminds that this law is part of those documents that are prepared in consultation with the European Commission (EC), so it would have to go through procedures that include seeking, obtaining and incorporating the opinions of European Commission experts.
In the principle part of the suggestions, the CCE is of the opinion that the name of this Law should be changed, i.e. that instead of the Law on Prevention of Corruption it should be the Anti-Corruption Law. Namely, the existing name does not fully reflect the content of the legal norms themselves, which are not entirely of a preventive nature, but also refer to the fight against corruption.
CCE also indicates that the so far practice has shown that certain provisions are too rigid, such as the definition of a public official, and that this is one of the key issues that amendments should address, as this is already producing detrimental consequences. It is clear that the explicit legal provision of the meaning of the term public official was set with the intention of covering the widest possible group of categories of public officials to suppress or prevent corruption. However, in practice, this definition introduces limitations that slow down and stop the system, or in certain cases lead to its deviations. The Law provided, amongst other issues, that any person whose election, selection or appointment is approved by the authority, regardless of the permanence of the position and compensation, is a public official. However, the duties and obligations of public officials by this Law do not make sense for all categories. Therefore, the Law must separate persons i.e. public officials in high management positions, who participate in making some important and strategic decisions and persons who are paid and have privileges and benefits, from those who are appointed to working groups or bodies for creating regulations or membership in school boards and similar. For example, persons appointed to school boards allocate their resources, money and time, working voluntarily and contributing to society and the community, without influencing decision-making or with decision-making but without corruption risks. The intention is that these should be interested and committed parents, teachers, etc, and this provision makes it meaningless if they do not want to declare their assets, which is their legitimate right because they do not have the scope of authority to be subject to that level of control. The application of this provision can lead to further politicization of the school system, because mostly party representatives will be members of these committees in future.
In order to reduce corruption risks, the CCE believes that it is necessary to change the declaratory provision about the Agency for the Prevention of Corruption (APC) consent that can be given to access data on the accounts of banks and other financial institutions, in accordance with the law governing banking operations, into an imperative one, i.e. that APC must have the access to bank data of public officials. Nowadays, we have a paradoxical situation that some members of the APC management did not give their consent, which also sends a bad message about trust in that institution.
In addition, it is necessary to establish the control system of the APC, the principle of the second degree in the election and replacement of the members of the APC Council, but also to change the conditions for the election of the members of the APC Council and the APC director, as the existing solution turned out to be non-functional due to the rigidity of the formal and legal conditions, but also limiting in terms of the availability of membership in the APC Council for individuals who were not tied to a job in the public administration by their previous engagement, as well as for those who have ceased to be active in parties or the Government or the Parliament, because the term of 10 years in the Montenegrin conditions is not objective. More precisely, what is functionally important should be retained – Montenegrin citizenship and that the person has not been convicted of a criminal offence that makes him/her unworthy to work in the held body. The part that refers to the initiated criminal proceedings would be omitted because this violates the presumption of innocence. Also, among the entities that can issue an opinion on the candidate, the category is specified as “individual” instead of “entrepreneur”, considering that there are persons who are not entrepreneurs with whom potential candidates gained experience or had other business relationships (for example, lawyers, representatives of the NGO sector, academic communities and so on), and thus covers the possibility that the person whose opinion/recommendation is sought has changed position in the meantime and does not exclude someone who can provide a credible opinion/recommendation about the candidate’s professional experience. Finally, the “cooling off” period is reduced from ten to five years.
CCE notes that these are general recommendations and that it is necessary to enter into a comprehensive analysis and the process of drafting amendments to this Law.
Snežana Kaluđerović, Senior Legal Advisor