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SAI and Criminal Charges

During the meeting with state auditors and civil society held last week, one of the key issues raised was whether the State Audit Institution (SAI) should file criminal charges and why that hasn’t been done in their thus far.

The reports of SAI list numerous irregularities and illegalities in the field of managing the public funds and property. After almost eleven years of work of SAI and over 120 audit reports, it is time to sanction persistent „offenders“. To our knowledge, SAI hasn’t been filing any criminal charges thus far, neither it has initiated proceeding for compensation of damage or notifies the State prosecutor about damaging the state property.

Responsibility is not only on SAI

Criticism addressed to the SAI is legitimate, but no less responsibility lies with the Prosecution, the Police and the other stakeholders as well. The Criminal Procedure Code obliges all state bodies (as well as the bodies of local governments, public companies and institutions) to file criminal charges which should be prosecuted ex officio, of which they are informed or notified otherwise.

The reports of SAI should serve as an indicator to all aforementioned stakeholders, as the starting point for their own audits and filing potential criminal charges. If we reduce this problem to blaming the SAI, we are liberating from the liability all other who are also supposed to do their job properly.

The Prosecution should, at least for the start, notify the SAI and the public what has been done in all cases where the SAI had delivered the documentation related to problematic or negative audit findings.

Capacities for Criminal charges

For years, the SAI has stated that they have insufficient capacities in terms of legal personnel experienced in criminal law. This has to be solved or at least start with solving this issue by increasing the budget of the SAI, hiring new employees or training the already employed.

Waiting for the first misdemeanor charges for the Law on Budget…

Law on Budget and Fiscal Accountability, adopted last year, has introduced the misdemeanor provisions for its violation. We advocated this change since 2010, when we have warned that, from all countries in the region, only Montenegro has no sanction in the systematic Budget Law.

This is very important for the SAI, because it will be able to file misdemeanor charges if the Law on budget is violated. Therefore, we expect the start of sanctioning and establishing responsibility

Where are the penalties for the failure of documentation delivery?

Although the criminal charges are the most interesting for the media and NGOs, there are also other forms of determination of responsibility for acts which don’t have the attribution of the criminal act, but the perpetrators must be punished. It should also be noted that this far no criminal charges have been filed.

In the case of the audit of state guarantees (2013), the SAI states in its report that the subjects of the audit (Ministry of Finance and Ministry of Economy) have not delivered all required documents to the state auditors. This behavior has not been sanctioned, although the Law on State Audit Institution imperatively stipulates that all required documentation must be delivered to state auditors and provides the penalties for the subject who fail to do so.

Marko Sošić

Public Policy Researcher

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IA donated books to the Faculty of the Political Science

As a research institute, we prepare and publish publications of importance for the students and academia, so we wanted to offer the analysis of the key elements of public policy from the perspectives of different scientific disciplines with our collection of papers “Public Policy”. This collection was the result of our programme” Public Policy School”, with the aim to additionally contribute to the studies of public policy and to offer the facilitation to the future participants of the School. Within five modules, the participants of the Public policy school have the opportunity to meet with the term, actors, instruments, methods of research, and the content of sector policies.

We will continue with the practice of donating our publications to the Faculties in the next period as well.

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Collection of concession fees still under the veil of secrecy

New proposals by the Draft Law on public-private partnership are not stimulating, do not adequately regulate the supervision over the implementation of these partnerships, and they are not based on “lessons learnt” from the bad application of the concession policy thus far. By avoiding the application of the Public Procurement Law and by preventing the possibility of periodic inspection in the current situation of the collection of fees, the enormous space for the corruption and manipulation is being made.

The Draft Law on public-private partnership, already put for the public hearing agenda, stipulates the establishment of the Investment Agency, which should centralize the competence for the coordination, professional support and reporting in this field. This is positive from the perspective of abolition of four state bodies which have been spending significant amount of the budgetary funds while having rather limited competence. However, this one of the rare advantages offered by this Draft Law. The method of appointment of the Council of this Agency leaves the space for avoiding engagement based on the merit criteria and eligibility for jobs in these positions. Additionally, it is unclear whether the Agency will take over the staff from the bodies that will be abolished by the establishment of the aforementioned Agency.

Although the Draft Law on public-private partnership stipulates in details the phases and elements for the preparation and approval of both public-private partnership and concessions, as well as keeping two different registers (both projects and contracts), this does not necessarily mean that it will be stimulating for state bodies or for the investors. Proposed changes do not contribute to the transparency. Again, the public will not be able to obtain the inspection of the plans of the financial repayments nor the quarterly balance of fees collection, which was one of the recommendations of State Audit Institution during the audit of the incomes of the budget of Montenegro based on the concluded contracts on concessions in May 2014. Furthermore, the text of the Draft Law, does not stipulate the periodic publishing of information about the supervision over the implementation of concession and public-private partnerships, which is of a great importance in overcoming previously faced problems, which resulted in multimillion loss due to bad concession fee collection.

The Draft Law is not complementary to the Public Procurement Law in regard to the procedures for the appointment of the private partner, but it defines new procedures and differently regulates the composition of the tender board. Apart from the fact that this leaves the space for manipulation in regard to the implementation of the tender procedure, this is not in accordance neither with the practices of the neighboring countries nor the EU countries. It is necessary to improve the Public Procurement Law rather that to avoid its application when concluding multimillion contracts.

Moreover, the Draft Law does not stipulate the maximum period for the conclusion of the contract between the public and private partners. Beside the possibility of the inspection of the annual report about the work of the Investment Agency whose establishment is planned in 90 days from the moment when the Law comes into force, the Parliament is completely exempted from the control in this field.

Finally, the public hearing about this Draft Law itself was reduced to 20 days, which represent the violation of the Regulation which regulates the participation of the interested citizens in the deliberation of the Law. It is unacceptable to reduce the time for the public hearing in the process of making this very important anti-corruption law, after years of delay in adoption of this Law.

Jovana MAROVIĆ
Research Coordinator

Complete comments on the draft law are available here (in Montenegrin only!)

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Replacements and court intrigues

Dina BajramspahićReplacements of the Head of authorities, as the act of the sanctioning due to the lack of results and serious omissions, make sense only if: those replaced are not shifted to another managerial position and secondly, even more important, if their position has been fulfilled by better, more professional and capable officials. Otherwise, the replacement does not make any changes while all the circumstances which brought to the replacement are staying “indoors”. And that’s how our practice works. Since there is not serious assessment in the state administration, the Head of authorities are usually appointed without any expert criteria, without any merits or results that would recommend them. Then, they are being replaced without any explanations, followed by appointing others in the same manner. The problems remain the same, rotating in the circle with the people who are also being rotated among different organizational unit and bodies.

Let’s start with the last example of the replacements in the Police administration. The replacements in this state body are maybe the most frequent and most confusing, since the consequences of the omissions are drastic and visible to the citizens. But does anyone really think that the new Head of the Criminal Police Sector will be more capable of his predecessor in preventing the car explosions near the kindergarten in the middle of the day? It goes without saying that someone has to be held responsible for alarming events happened in the last period of time, but the replacements will not bring the solution to the problems. The real question should be whether the causes for omissions are being treated well. If the cause is the lack of capacities in the Police, is the Strategy for managing human resources being improved? Are the missing skills being analyzed well? It is necessary to fundamentally reassess the system of salaries and the system of assessment. If we have the Police officers whose work is not being adequately evaluated and who are aware of the fact that they cannot progress based on objective merits, they will not have any interest in contributing to the service. The transparency is the key and citizens and employees need to know why is someone who is promoted better than everyone else.

On the other hand, the year 2014 ended with sudden resignation of Boro Vučinić, the Director of the National Security Agency (NSA). Until today, the public did not get single serious information about what has happened. Instead, the number of the worrying assumptions about the reasons of the resignation is getting higher, which brings even more mistrust in the NSA. The reasons such as “the act of personal resignation” or “over-saturation with the job” don’t seem convincing because Vučinić didn’t wait to appoint new director, nor he officially declared his reasons of resignation in public. He neither attended the meeting of the Defense and Security Council with his resignation as the main topic of the agenda. What is of the great importance is to observe the „behaviour“ of the system in this situation. To start with, there are two hypothetical possibilities for this replacement/resignation – the Government does not need Vučinić or Vučinić does not need the Government.

The first, common assumption would be that Vučinić has made the omission, the problem or that he represents the obstacle to further reforms of the NSA, thus, the Government wants to “punish” him and appoint someone else to continue his work. In this scenario, the Government is obligated to notify the public about it because the NSA is not someone’s private company. It is unthinkable that the employees in the state administration are being appointed and replaced without the accountability toward the citizens who, in the end, pay it all. Does the silence of the Government means that it is leaving the space to appoint Vučinić to some other managerial position? In the atmosphere when the columns in newspaper are being filled with theories how the NSA is connected with the organized crime, with the Russians and whom else not, the Government with its arbitrary decisions doesn’t contribute in removing tensions.

The second theory is that Vučinić has opposed to one of the Government’s decision in regard to NSA, refused to work or continue working what was asked from him, until the differences in the opinions have reached the point of mutual exclusion. It is crucial to understand that, in this very moment, there is not the efficient institutional mechanism which would support Vučinić or any other official who does not agree with the Government’s policy. The Defense Council did not succeed to institutionally solve this problem. The Prime minister and the President have been against the decision that this topic is being discussed at all. The result of the coerced meeting has been the reduction of this question to the personal relation between Prime minister and the former Director which was meant to be discussed among them rather than treat it as the question of national importance. Although the representatives of the opposition have continued to talk about this question in the Security and Defense Committee, the parliamentary majority did not show interest in further discussion on this topic.

Whether someone likes it or not, Vučinić has given his contribution even to the reform of the Army, while he was at the Minister of Defense as well as to the reform of the NSA. The fact is that NATO standards for intelligence sector are not too high, but judging by the statements of foreign officials, the conditions they set have largely been met. From everything said, the employees in the state administration can get the following message: everyone is replaceable and irrelevant, while the results and the quality don’t mean a lot.

Every government dreams of having the unlimited power, to work whatever and however it wants and not to be held accountable, but this practice is simply unacceptable for the citizens. The challenges to the integrity, the respect for the professional standards and principles are much bigger than e.g. the risk of corruption, because the regulations are not being violated only for the personal use, but also on behalf of the state or Government. Therefore, there must be a system that reacts predictably, restricts arbitrariness and encourages professionalism.

Dina Bajramspahić
Public Policy Researcher

Text originally published in the ,,Forum” section of the daily Vijesti

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Reaction: Open Calls Instead of Political Decrees

The appointment of the Assistance Ministers must not be subjected to the coalition agreements. The recruitment should be made solely on the basis of open calls and capabilities of the candidates verified by the special commission, as said from the Institute Alternative (IA).

The media announced today that one of the topic between the Heads of Forca and Democratic Party of Socialists, regarding the alleged amendments of the coalition agreement signed by these parties, will be the staffing solutions and positions in the Government, which include also the request of Forca to obtain the position of the Assistant Minister in the Ministry for Human and Minority Rights.

The Bosniak party and the Democratic Party of Socialists have signed the coalition agreement earlier, whose subject, according to the media reports, were the job positions for which the recruitment should be made in accordance to the Law and not in the accordance to the political deals.

These and similar practices of arranging jobs among the parties represents the disregard to the Law on Civil Servants and State Employees, which stipulates clear procedures for the recruitment for the position of the Assistant Minister, or the Director-General in the Ministries. Those procedures imply the previously published open call as well as the verification of capabilities, carried out by the commission established by the Human Resources Administration.

Therefore, the Director-Generals in the Ministries, or colloquially known as the Assistant Minister, although fall within a scope of the senior management staff, are still the civil servants who should be serving for the public interest rather than interests of political parties.

Unlike the Ministers and State secretaries in the ministries which are primarily political figures whose mandate is determined by the mandate of Government itself, the position of the Director-General should be fully professionalized and independent of parties in power, or, in the context of Montenegrin politics, of the relationship between powers in the ruling coalition.

Even the joint initiative of the European Commission and the Organization for the Economic Cooperation and Development, SIGMA, has pointed out the need of defining the positions of Director-Generals and Secretaries in the Ministries as the upper limit that separates the political and professional appointment in the state administration. Defining aforementioned upper limit is one of the “Principles of Public Administration”, published by SIGMA last year, a month after the reform of the public administration, next to the rule of law and the economic governance, was defined as one of the three main pillars of the newest EU Enlargement Strategy.

IA has warned, in its study “Professionalisation of Senior Civil Service in Montenegro: Between State and Politics” published in December 2014 with the support of the Friedrich Ebert Foundation, that the professional positions of senior management staff and the Head of authorities “on paper” are exposed to the direct political influence.

Milena Milošević
Public Policy Researcher