National Convention on the EU in an online dialogue with the Prime Minister

On February 22, the National Convention on the EU participated in an online dialogue with Prime Minister Ana Brnabic. The following topics were planned to be discussed: media strategies, constitutional changes and the fight against corruption.

The first keynote speaker was the Prime Minister, and then three "rounds" of keynote speeches were planned for three topics of the meeting and discussions on these topics:

-for the topic of media strategy, Gordana Predić from the Ministry of Culture and Information (special advisor to the Minister) and Maja Stojanović from Civic Initiatives

-for the topic of constitutional change, Cedomir Backovic from the Ministry of Justice (Assistant Minister) and Lidija Komlen Nikolic from the Association of Prosecutors

-for corruption, Bojana Scepanovic from the Ministry of Justice (State Secretary) and Robert Sepi from Transparency Serbia

Presentation of TS representative:

I am speaking here on behalf of the working group for Chapter 23, which examines the progress in the field of fighting corruption, which is important for EU integration, but also on behalf of the working group for Chapter 5 (public procurement) where Transparency Serbia is the coordinator.

We have been highlighting the connection between these two negotiating chapters for years, and this attitude has been largely accepted by the EU. The EC report from October 2020, more clearly than ever before, points to the inadmissible practice of contracting public procurement and public-private partnerships not by law but on the basis of interstate agreements and special procedures for selecting "strategic partners" in infrastructure projects "of national importance". The EC also reminded of the obligation that Serbia did not respect - to ensure the application of the legal principles of transparency and competition when it comes to emergency procurements related to the COVID-19 pandemic.

The EC's general assessments of "limited progress" in the fight against corruption were based primarily on the fact that some preparations had been made for the implementation of the Law on Prevention of Corruption. However, as published in November 2020, this law did not even normatively meet all the GRECO recommendations.The conditions for the full implementation of this law still do not exist, because the process of electing the council of the agency, instead of being completed by 1 September, 2020. is still in progress. On top of that, two weeks ago, the Assembly adopted an authentic interpretation which drastically reduced the number of public officials covered by law. At the same time, the government, which proposed the law at the time, did not even try to outline the harmful consequences of these changes. Only due to the fact that we alerted the National Assembly, the public and international organizations, even greater damage was prevented: for example, to exclude judges, public prosecutors, 2/3 of judges of the Constitutional Court and officials appointed by the Serbian President from the notion of officials.

A number of important anti-corruption laws were changed in early 2020, before the Parliamentary elections. However, not only the findings of TS and other CSOs from Serbia show that these changes did not solve the key problems, but it was also confirmed by international observers, primarily by the ODIHR. The government formed a working group to implement the ODIHR's recommendations, but there are no indications that the working group has done anything since February 2020. In this regard, priority was given to comprehensive amendments to the Law on Financing Political Activities, but the Government, i.e. the Ministry of Finance and the Ministry of Justice have not even started working on it (generally, the law is within the competence of the Ministry of Finance, but it was prepared by the Ministry of Justice in 2011 because it is an anti-corruption law).

We remind that Transparency Serbia made a number of specific proposals based on the findings in monitoring that we have been conducting for each election since 2004, as well as based on good experiences from practice. Also, the monitoring showed that no progress was made in conducting the functionary campaign as a manner of presenting representatives of the parties in power, which in many ways exceeds every type of paid political advertising and pre-election promotional activities of political parties. We have offered a concrete solution to this problem as well - how Article 50 of the Law on Prevention of Corruption should be formulated.

When it comes to prosecuting grand corruption, it is important to reiterate the EC's assessment of the insufficient number of convictions, and the need for proactive action by public prosecutors. The EC explicitly points to the need to protect whistleblowers in such cases, citing the affair "Krušik". It should be noted that this is by no means the only case in which argumentative suspicions of possible corruption were expressed in the media, and which the prosecution did not investigate. The Serbian government should certainly not do the job of the public prosecutor's office, nor can it be held accountable if prosecutors do not do so, but it can create better conditions for prosecutors to perform their job independently (not present in previous draft amendments to the Constitution). The government may also request all cases of suspected corruption by members of the government to be investigated, and it can provide supervision over the a part of The Law on Protection of Whistleblowers that is currently not implemented – whether the information provided by whistleblowers has been examined.

At present, there is no public institution, authority which is in charge with this type of supervision of information provide by whistleblowers, that is, there is only the supervision of labor inspection and state administration concerning the respect of whistleblowers' rights but not the examination of further actions. The Ministry of Justice also collects data on law enforcement, but not on the examination of whistleblowers’ information. The TS proposed a regulation of the supervision over the monitoring of the law implementation at the time of its adoption and the EU also requested changes to the law due to harmonisation with the new directive, so this is an opportunity to regulate other controversial issues as well.

On several occasions, the government pointed out the Law on the Examination of the Origin of Property and Special Tax as a measure for the fight against corruption. The implementation of this law is expected in less than a month. It may bring some positive effects, but it is wrong to call it an anti-corruption law. Namely, as we pointed out during the writing of the law and the parliamentary debate, no provision of this law stipulates that the assets of persons who may have been illegally enriched by corruption will be inspected as a matter of priority - e.g. as current or former public officials, public officials who decide on granting permissions and approvals, who control compliance with the law and the like. Not only is there no such norm, but it is even explicitly prescribed that the criteria on the basis of which it will be chosen which citizens will be controlled are secret. Therefore, the EC emphasizes the need for "the implementation of the law not to be discriminatory", but the law does not contain any guarantees in this regard.

In addition, the opportunity to examine the constitutionality of the provisions of this law concerning the statute of limitation of tax obligations was missed. There are still fresh experiences from 20 years ago, when an extraordinary tax was introduced by a similar law, but the whole thing ended in failure. The opportunity for change still exists, since the assembly started a debate on amendments to this law at the end of February, so there is a possibility for the government to amend its proposal.

In addition to undermining the public procurement system, we have a current example of not only non-application of anti-corruption regulations, but complete lawlessness when it comes to managing large public companies. Namely, not only has the government not fully conducted competitions for the election of directors of public companies (which is a legal obligation since 2012), but 19 of the 34 such national companies are managed by citizens who were once directors or acting directors. And now the latter, without any legal ground, sign contracts worth hundreds of millions of euros, hire and fire employees, adopt regulations and work programs. Such a situation brings public funds at great risk, even when the former directors manage the companies in the best possible way, and we can see from the SAI report that this is not the case either. The government is solely responsible for this situation, as it appoints and dismisses directors as well as acting directors.

One of the laws important to Chapter 23 is the Law on Free Access to Information of Public Importance. Work on this law has been renewed and its amendments have also been delayed for seven years compared to the original plans. Civil society is concerned about the fact that only representatives of state bodies participate in the process of writing a new draft, although CSOs have made a number of concrete proposals during the previous public hearings. Those proposals were only partially taken into account. After all, this is the law which was passed in 2004 on the basis of proposals submitted by CSOs as their basic "means of work" not only in the field of fighting corruption, but also in all other areas.

Regarding the application of this law, we indicate as a big problem not only the fact that the government has not provided for the improvement of norms, but also that in practice it does not respect its existing obligations. For example, some of the most important requests for access to information of public importance that Transparency Serbia sent to the government regarding public procurement of health equipment resulted in filing a complaint with the Administrative Court for concealing data.

The Government has significantly reduced the publicity of the work of other bodies with some of its decisions, and the most noticeable example is the conclusion of 15 March 2020, which declared all procurements related to the Covid-19 pandemic confidential, although there is no ground for such a decision in the Law on Public Procurement.