Since the beginning of September 2020, Law on Prevention of Corruption has entered into force in Serbia, by which the main anti-corruption body, Anti-corruption Agency of Serbia changed its name to Agency for Prevention of Corruption. As lack of results in fighting corruption is one of the most serious obstacles to the economic, social and political development of the country and joining the EU, it is very important that the renaming of the Agency does not become the only change brought by the law.
The problems in the anti-corruption system are numerous, not just in the area of prevention but also in repression, as the judiciary and prosecution do not hold a great track record of solved cases, which have been piling on in the last years. The omnipotent political elite of the ruling SNS party seems to have completely forgotten about its anti-corruption pledge made to the citizens that brought them to power back in 2012, leaving Serbia without political will and with weak institutions and making the path towards good governance very gloomy and uncertain.
That is the reason why Freedom House (FH) downgraded the status of Serbia from “semi-consolidated democracy” to “hybrid regime” at the beginning of 2020, explaining this by “the cumulative increase in high-level corruption”. Government of Serbia responded promptly by the “analysis of the FH analysis”, in which they unsuccessfully tried to prove that, in a nutshell, this drop to the level of non-democratic countries is “only” because of the corruption, but also denying this was even the case.
So having in mind all this, the question arises: Can this law give an actual impetus for fight against corruption, or is it just going to be another piece of paper enacted to accommodate the recommendations of international bodies and another task crossed on the long “to do” list towards liberal democracy?
Greater power means greater responsibility for the Agency
The law was passed in the National Assembly in May 2019, five years after the inception of the process by the Anti-Corruption Agency in 2014, in line with the National Strategy for Fight Against Corruption (2013-2018), Action Plan and Serbia’s obligations deriving from the Chapter 23 in the negotiation process with the EU. Strategy and Action plan were expired, and three draft laws were proposed (in 2016, 2018 and 2019) before the Law on prevention of corruption was finally adopted. It was done by urgent legislative procedure in May 2019, for which we may find as the reasons the fact that GRECO “encouraged” Serbia to adopt the law before the end of 2019 in the 4th round of evaluation process. Although the public discussion regarding the proposals of the law were held, no report on the public discussion was published afterwards by the Government.
According to the Ministry of Justice, the new law, together with the other recently enacted anti-corruption legislation, such as the Law on the Origin of Assets, improves the legal framework for more efficient fight against corruption and strengthens the capacities of the Agency. But one of the most active civil society organizations in the field of anti-corruption – Transparency Serbia, is evidently not very happy with it, as it had remarks on 65 out of 114 articles.
It is important to note that this law, as the names says, deals only with the prevention aspect of fight against corruption, so even with the best possible implementation, it won’t influence the results in terms of prosecuting corruption offences, as Nemanja Nenadić, Program Director of Transparency Serbia explained for European Western Balkans.
„As it was pointed out that the law gives greater authority to the Agency in controlling the property and income of public officials, those powers also give the Agency the responsibility to make the results of those controls better than they have been so far“, Nenadić said and added that he is skeptical when it comes to the progress in that regard.
„Firstly, because the new law does not adequately address one of the most important issues – cash reporting. Secondly, it is not clear why and to what extent the Agency has so far been hindered from detecting a larger number of violations of the law, when it comes to the declaration of assets – whether because the Agency did not have direct, but only indirect access to certain data (now addressed by the new law) or some other reason contributed to that“, he said.
Coalition of civil society organisations “PreEUgovor” in the Alarm Report on Chapters 23 and 24, concluded that the corruption prevention law did not solve the problems observed by both Serbian and international experts, and in addition to the slight improvement of the Agency’s competences when it comes to the asset control, there is no comprehensive reporting and guarantees for political impartiality of the Agency’s officials.
Namely, the new procedure for selection of the Board members is one of the most significant changes in the new law. According to Article 24, The Board members shall be appointed by the majority in the National Assembly, upon the selection process conducted by the Judicial Academy. The selection process consists of a professionality and integrity test, and the National Assembly may choose among all candidates that scored at least 80 out of 100 points.
“While it can be expected to improve the expertise of future officials of the Anti-Corruption Agency Board, the new appointing procedure does not provide greater protection from political interests”, it is stated in the PreEUgovor’s Alarm report.
In addition to the strengthened authority of the Agency to control the validity of the assets declaration, Nemanja Nenadić stated that the Agency now has the authority to analyze the corruption risks in legislation and point them out much earlier.
Prevention of the public office abuse – a missed opportunity
In June 2020 Serbia held the most contested parliamentary elections since the democratic changes 20 years ago. Among the many issues that occurred in the election process is the abuse of the public resources by the public officials during the campaign. For example, monitoring by Transparency Serbia showed that public officials participated in 50% more promotional events during the first 50 days of campaign in comparison to the same period in 2019.
The prevention of the public resources abuse, including the campaign period, is in the competence of the Agency and therefore it is very important for the new law to address this issue, but in the opinion of Raša Nedeljkov, Program Director of Center for Research, Transparency and Accountability (CRTA), not enough has been done in this regard.
“The new law more precisely defined the public officials’ campaign or specifically the abuse of the public office, but the opportunity was missed to really address the issue”, Nedeljkov said.
He pointed out that CRTA had multiple proposals, in line with international recommendations, that would significantly improve the prevention of misuse of the public good for party purposes. The most important suggestion made by CRTA was to prohibit public officials from participating in the publicly funded events during the election campaign and thus promoting themselves and the political party they belong to.
“Unfortunately, the political elites in power did not agree to make changes that would practically reduce or limit the advantage they have in the campaign over other actors. No government has so far taken this problem seriously”, Nedeljkov said, adding that this advantage proved to be very useful during the recent parliamentary election campaign, because outside this promotional and campaign events of the public officials and media coverage of them, the election campaign was almost non-existent.
It also needs to be said that in the Alarm Report, the deadline of five days in which Agency has to act upon complaints in cases of possible violation of rules by public officials during election campaigns, has been noted as positive, but remains unclear how much obligation Agency has to act on its own initiative (ex officio).
Can the Agency for Prevention of Corruption be trusted?
As the main focus of the Law on Prevention of Corruption is to regulate the work of the Agency for Prevention of Corruption, the implementation of the law will depend on the Agency’s professional and financial capacities, but also on the credibility of the Director and the Board to act impartially.
According to the Institucionalni barometar 2.0, a study that measures the effectiveness of the key independent institutions, Agency worked with only 61,9% of the staff in August 2019 and it was burdened with inefficiency and political pressure. There is also a lack of credibility of the Director of Agency, who was a donor and a member of the ruling SNS party and a representative in the electoral commission, before taking the office in 2018.
The inefficiency and lack of credibility is the trademark of the Agency since its inception, said Vladimir Radomirović, Editor in Chief of Pištaljka.
“Agency had the opportunity to change the situation in this area, but unfortunately each of its Directors and each Board chose rather to punish primary school principals for petty corruption than to focus on the high level corruption”, Radomirović said and added that even in 2010 and 2012 Agency vigorously defended two Ministers for which Pištaljka claimed that are involved in serious corruption affairs.
Radomirović also pointed out that every Director since then was suspected of corruption and abuse of office, except Majda Kršikapa, who resigned a few weeks after taking the office in 2017, but the public still doesn’t know what the reason for this resignation was. Based on this experience Radomirović does not believe that something positive in the work of Agency will come out as the result of the new Law on corruption prevention.
“It will probably become another administrative body with no ambition to solve problems and only a burden on the wallets of Serbian citizens”, he said.
What is certain, is that the ambitions of the Agency to solve the problems will have to be accompanied by the ambitions of the Government to follow the same path, as the Agency cannot work in the environment where anti-corruption endeavors are not supported and often are sabotaged. Maybe more important than having a perfect legal solution is to have professionals with integrity leading the Agency, who are eager to fight corruption without compromise. Those people could perhaps regain the trust in this institution, and which might be the first task of the Agency in the period ahead of us.
This article was published as part of the project “Civil society for good governance and anti-corruption in southeast Europe: Capacity building for monitoring, advocacy and awareness-raising (SELDI)” funded by the European Union.