Although the Parliament of Serbia adopted or improved anti-corruption laws based on international recommendations, that was often done with significant delays and only to fulfil minimal standards. Thus, various reports on Serbia point out the problem of stagnation and even deterioration in fighting this problem.
What are the most challenging areas in the fight against corruption? What caused them and do the current resources that Serbia has for fighting this problem enable a solution? On these and other topics we spoke with Nemanja Nenadić, Program Director at Transparency Serbia.
European Western Balkans: Challenges of corruption are prevalent in the Western Balkans. According to some reports, citizens of the region believe that corruption is the most crucial problem of the region, after unemployment and low standard of living. Could you single out some of the major causes that made corruption an integral part of society?
Nemanja Nenadić: Causes of corruption are the same worldwide, but some are more specific to our region. First, demands for services in our region are significantly higher than the state may provide (e.g., in the healthcare sector) which causes some types of corruption to occur more frequently than in Western Europe. Even more significant is the fact that ruling political elites are also controlling the business environment, which creates forms of highly affected markets and brings specific types of corruption.
Finally, citizens of the region do condemn corruption in general but are too often ready to vote again for corrupted leaders for some other reason (rhetoric on issues of national interest, strong propaganda). At the same time, international organizations and foreign countries promoting the rule of law in the Western Balkans cannot or sometimes even do not want to influence more substantial changes but protect “stabilocracy” instead.
EWB: CSOs represent a crucial component in every democratic society, and their role in preventing and fighting corruption is considered essential. How do you assess the cooperation between CSOs and the state institutions in Serbia regarding the fight against corruption? Do you think that the existing legal mechanism for their collaboration is sufficient? Do you believe the CSOs are recognized sufficiently as relevant actors in the matters of fighting against corruption?
NN: Some cooperation exists, but it is very far from being sufficient and effective. On the contrary, there are plenty of examples where public authorities even actively discourage the activities of the CSOs and disable cooperation. Sometimes, the Government opens the possibility for the public to contribute to the process of drafting strategies and laws. However, in many instances, the proposals of CSOs are rejected without any explanation.
Among others, the Law on Prevention of Corruption was changed without announcement. The “public debate” was organized in August, and no one knew about it. The Parliament adopted it urgently, without considering proposals for improvement that our organization (Transparency Serbia) submitted. Draft changes of the Law on the Financing of Political Activities were sent directly to ODIHR, without even publishing it, not to mention public debate.
The Government’s representatives, the President of the Republic, MPs, and local political leaders do not treat watchdog CSOs as potential partners, as someone who wants to improve the country, but as their political opponents. Their reaction to the reports and initiatives of CSOs and investigative journalists in the field of anti-corruption ranges from ignoring to the open attacks and smear campaigns. Perhaps, it is partly due to the fact that they do not have political opponents in Parliament anymore.
For example, when Transparency Serbia pointed out the need to publish information about COVID -19 procurements because this would be in the line with the law, and it would contribute to building the confidence of citizens, the state had a different response. In his appearance on one television, on the host’s remark that Transparency Serbia requested the data on the procurement of medical equipment needs to be published, the President of Serbia Aleksandar Vučić replied: “Well, they are asking that because they know how they would steal the money when the citizens are suffering”.
EWB: Various reports suggest that Serbia needs to step up its efforts and improve its work on preventing and combating corruption. Can you tell us which areas are the most challenging and require the undivided attention of the authorities? Do you believe there is enough political will to combat these challenges?
NN: It would be difficult to claim that there is a political will to combat corruption in its most crucial areas. It is clear that such will was not demonstrated in many recent occasions where politicians were in charge of drafting and adopting laws and implementing those that were already in force. In some instances, in recent years, the Government and the Parliament adopted or improved laws based on international recommendations (GRECO, ODIHR, SIGMA), but with significant delay and only to fulfil minimal standards. It happened with the Law on Lobbying and the Law on Prevention of Corruption and is now happening with changes of Law on the Financing of Political Activities.
Anti-corruption is still part of politicians’ rhetoric, but usually as a way to point out the alleged crimes of their political predecessors or as a way to discipline local leaders of the ruling party.
The situation we have now is an absurd one. For example, current political leaders came into power by promising a fight against corruption in areas such as public procurements and privatization. They immediately adopted a new law on public procurements in 2012 with plenty of anti-corruption mechanisms. However, from the beginning of their rule, they started to directly contract major public works without competition, using either state-to-state agreements or special laws. Last year, the new law was adopted, which sets thresholds on a significantly higher level, so the overall number of procurements that are opened for competition further decreased.
There are activities of law enforcement bodies, and many people are being investigated or punished for corruption. However, what is obviously missing is an investigation of all potential high-level corruption cases that are suspected and sometimes well-argued in the investigative journalists’ reports or brought up by whistle-blowers.
Serbia had or has its anti-corruption plans, but it does not bother much to implement them. The previous Strategy expired in 2018, and there was not even a discussion about the reasons why most of it remained unimplemented. Similarly, there was no discussion about the implementation of the revised Action plan, following the report of the Anti-corruption Agency for the year 2020. The work on the new Strategy would start in 2022 at best. I
n the meantime, we are waiting for the so-called “operative plan” for areas of a particular risk that would cover only five topics (public procurement, local government, police, customs, privatization). Transparency Serbia proposed a lot of measures for that document – in particular for the public procurement area, but they were rejected, some of them even without explanation.
EWB: In its 2020 report, the European Commission stated the problem of reducing the number of high corruption cases. Moreover, the European Parliament drew attention to specific examples of high corruption cases that need to be investigated. In your opinion, what are the reasons for the lack of prosecution of these cases?
NN: Transparency Serbia recently published a study about this problem and, we have proposed some solutions.
When looking into laws, the main problem is that public prosecutors only may but are not obliged to pro-actively check information indicating potential high-level corruption which is exposed and sometimes even well-elaborated in investigative media reports.
There are many other legal issues as well, such as the fact that specialized prosecution offices are not in charge to deal with some corruption-related criminal offences (including providing false assets’ declarations of public officials). Another thing is that it would not be possible to use special investigative techniques for some high-corruption cases. We have also proposed introducing a new criminal offence of “grand corruption”, with a longer statute of limitation.
Aside from legal provisions, it seems that the major problem is the lack of independence of judges. Another problem is the independence of the public prosecutors from political decision-makers. The major evidence for that is the lack of any reaction in publicly suspected corruption cases, but also decisions on a rejection of criminal charges.
Furthermore, instead of public prosecutors who are in charge of criminal cases, the public is frequently informed about ongoing or finalized cases from politicians. That factor also contributes to the perception that political leaders are those who decide when the case will be opened and how far and deep will investigation and indictment would go.
EWB: In Serbia, many public enterprises do not have directors and members of supervisory boards who are elected in accordance with the Law and that hinders their professionalization. What is your opinion on the current resources/means that Serbia has for fighting this problem? Do they enable the solution?
NN: It is simply a matter of the will of the Government of Serbia to implement the law they proposed in the first place (in 2012 and 2016). In order to ensure basic compliance with the Law, the Government should at least appoint acting directors, where the mandate of the current one expired, which is the case for 70% of public enterprises, including the biggest ones. Of course, they should finalize competitions for directors or organize new ones as soon as possible. Instead of showing a clear willingness to implement the current law, the Government of Serbia, in its Strategy of State Ownership and Management of Business Entities Owned by the Republic of Serbia, foresees amendments to the Law, again, as a solution to the problem.
When it comes to the oversight boards and the selection of directors, further improvement of the law is needed, as well as some of the conditions which are not precise enough – in particular when it comes to the relevant work experience.
EWB: The new Law on Public Procurement that entered into force in July 2020, despite its harmonization with European standards, has led to a reduction in competition and transparency of this process. The procurements not being announced and those concluded without a public tender are more and more frequent. Could you tell us, what do you believe has caused this situation and did the pandemic affect the increase in corrupt practices?
NN: Actually, the harmonization was used as an excuse to reduce transparency and competition, in particular through significant raise of thresholds above which open tender procurement is mandatory.
The new law did not address another point of criticism that comes both from Serbia and the EU – using state-to-state agreements and special law as “legal ground” to avoid or limit competition and transparency. These issues may be resolved only by constitutional changes or based on the Government and the Parliament’s commitment to simply stop with such practices.
The first year of implementation also shows that the system of monitoring and oversight of public procurements is ineffective.
We found that the Public Procurement Office monitored only 0.25% of cases and there is no explanation why they did not perform monitoring of cases based on initiatives of external stakeholders. For the monitoring of contract execution, where the Ministry of Finance is in charge, there is no information whatsoever.
When it comes to COVID – 19, the situation only worsened. The government declared all COVID -19 related procurements as “strictly confidential”, even if the Law on Public Procurement does not envisage such possibility for healthcare procurements. At the same time, the President, the Prime Minister and other public officials do speak about these procurements, present some figures, but none of it is supported by relevant documents.
EWB: The process of amendments to the Law on Free Access to Information of Public Importance has been going on for several years. During that time, three documents with proposed amendments were drafted. What is your opinion on the latest? To what extent does this proposal represent a solution to the problems, and does it enable improvement?
NN: The latest draft that is publicly available (after the public debate) is far better than the one formulated by the Ministry’s working group, and the one discussed in 2018 and 2019. However, the Ministry of Public Administration and Local Self-Government failed to provide explanations when rejecting some of the proposals submitted during that debate.
It seems that they are trying to comply with SIGMA recommendations, an organization whose opinion will also be used by the European Commission when assessing the quality of the law. Although SIGMA’s comments proved to be extremely useful for the improvement of the text, there are still some rather important issues in the Serbian context they did not raise. Namely, SIGMA relies on international standards, and those standards do not cover all topics.
Among others, it is evident that in Serbia, one of the major obstacles for effective access to information is the inability to appeal to the Commissioner for Information against the denial decisions of the Government and its services, the Parliament, the President of the Republic, the Constitutional Court, the Supreme Court and State Prosecutor. It is only possible to run an administrative dispute before the Administrative Court. The new law will add the National Bank to that list of public authorities.
Administrative disputes, however, do not represent an effective tool to protect the right to information, as one has to wait for years for the courts’ decisions. So, we believe that in all cases an appeal to the Commissioner should be allowed, or at least there should be a deadline in the Law for the Administrative Court to decide on the case.
As for other things, we are concerned that public authorities may use new ground for denial of access when a lot of documents are requested. Although it is true that sometimes responding consumes significant administrative resources (e.g., to copy a lot of documents), it is frequently only the consequence of the fact that public authority failed to produce and maintain documents in electronic form. Besides that, we believe that much stronger enforcement mechanisms for Commissioner’s decisions are needed in the Law, but also criminal liability for heads of public institutions that do not comply with the Commissioner’s order.
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.