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Agency hides and leaves no trail

By ignoring requests, prohibiting attendance to all forthcoming sessions of the Council and not allowing participation in the session concerning documents for implementation of the Law on Financing Political Parties and Electoral Campaigns, the Agency for Prevention of Corruption continued the practice of concealing its activities from the public eye thus demonstrating that circumvention of the law and lack of transparency will continue to be regular patterns of its work.

The Agency for Prevention of Corruption prohibited the representative of Institute Alternative (IA) from attending this year’s sessions of the Council. Moreover, IA did not even receive written notice if our representative may or may not attend this year’s first session of the Council held on 15 January. Notwithstanding the request being duly submitted, the interested public was informed that the application procedure was amended only after this session ended. Following the newly established procedure, we filed another request asking to be allowed to attend the session to be held the following day.

Only at our insistence were we informed that according to the decision of this body, representatives of the non-governmental sector cannot attend the sessions, but only participate in the work of the Council. The aforementioned decision of the Council took effect from January 1, 2016. Their decision upon our request was not delivered to us in a written form, but only communicated orally. Deciding upon our new request for participation, the Council once again denied it on the grounds that “there are no reasons for the participation of representatives of non-governmental organizations” as the by-laws are finalized.

Prohibiting NGO representatives from attending the sessions and restricting cooperation modalities to occasional participation represents a step further towards complete intransparency of the Council, which began with the termination of the practice of making audio recordings of the Council sessions. In addition, by inventing criteria for participation of NGOs, the Council of the Agency for Prevention of Corruption undermines the rule of equality, thus preventing independent entities from carrying out an impartial evaluation of its work. This complements the Agency’s spectrum of non-transparent “rules” of operation to which we have indicated in the recently published analysis on its establishment.

Jovana MAROVIĆ
Research Coordinator

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Interview with Bajramspahić: Regarding public officials, misuse of the Law is still present

Dina BajramspahićPublic authorities have made progress regarding protection of personal data, nevertheless the tendency towards misuse of the Law that regulates that area is still present. That misuse is mirrored in conceiving data on public officials, as noted by our public policy researcher, Dina Bajramspahić.

In the interview for PR Center regarding Data Protection Day, she stated that since the Law on Personal Data Protection has been adopted in 2008, progress was made, when it comes to following standards in this area.

’’Nevertheless, we should bear in mind that institutions are not the only one obliged to the Law, but also are business companies, legal entities and NGOs. Certain differences are being noticed here’’, Bajramspahić points out.

She estimated that progress has been made regarding protection of the personal data by the public authorities, through shading names and surnames and other personal data for identification of individuals.

”Through misuse of personal data protection principles, we have a certain tendency to cover info on public officials”, Bajramspahić warns.

She points out that many Montenegrin citizens are not familiar with their rights in personal data protection, especially regarding sensitive data which is protected by the system in accordance to the Law.

When it comes to public officials, Bajramspahić said that misuse of the Law is often in practice, pointing out to IA’s request for the biographies of state prosecutors, who applied for the Special prosecutor’s position.

’’We didn’t ask for that info because biographies of those people were interesting to us, but because we wanted to see the documentation based on which the Prosecutorial Council makes decisions. Nevertheless, we didn’t receive the info under the excuse of personal data protection of candidates. This is unacceptable because European Court for Human Rights points out that public officials whose payments are financed from the state budget should be less exposed to the sensitivity of data protection and should be more exposed to critics then common citizens’’, she points out.

‘’On the other hand’’, she added, ‘’there are public authorities that gather personal data to greater extent than it’s legally allowed. ‘’

’’It is necessary to improve surveillance in these cases and control data collecting’’, Bajramspahić says.

When answering our question on the rights that are being violated, regarding personal data protection, Bajramspahić said that the most common example concerning citizens refers to unauthorized data publishing.

’’Citizens have the right to know that their personal data cannot be published without their knowledge. This practice repeats when it comes to media, business companies, and advertising. Additionally, citizen can get insight in data from anyone who collects info on him/her’’, she said.

Institutions dealing with security have special authorities regarding data collecting without citizens’ knowledge and via secret methods, as Bajramspahić pointed out.

‘’This refers especially to those institutions obliged to control data collecting on citizens by two entities, Police administration and National Security Agency. Here we lack in sufficient surveillance of that which these two public entities collect.’’

The most active institution in this area has been Agency for Protection of Personal Data, which has made significant progress since the adoption of the Law. Neverthess, ’’there is still enough room for improvement.’’

’’Government and responsible entities, primarily Agency for Protection of Personal Data must contribute to the greater citizens’ knowledge of their own rights and their practice, which is the only way to discipline institutions, business companies and legal entities in practicing the Law in right manner’’, Bajramspahić said.

Bajramspahić referred that citizens should report abuse of the rights regarding personal data protection to the Agency.

’’Agency is authorized to receive complaints of the citizens and it is obliged to submit its decision on (non)spotted irregularities in timeframe of 60 days as well as to determine the measures for resolving spotted irregularities. In case its decisions are being disrespected, high fines are determined’’, she explains.

While addressing all the challenges awaiting Montenegro, Bajramspahić pointed out that implementation of the Law on Personal Data Protection will be in the EU eyesight, in the time of the accession.

„This way, responsible authorities and citizens will know more regarding the Law’’, she concluded.

Parts of the interview with public policy researcher in IA, Dina Bajramspahić, can be found below:

Courtesy of: PR Center

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Parliament powerless before Government’s capital budget

Parliament adopted the budget for 2016 while the MPs have tried to add six new projects to the capital budget, through specific conclusions. We assume that nothing will happen with these six projects because of the systematic problem in development and presentation of the capital budget, which disables Parliament to obligate the Government in this matter.

During budget adoption for 2016, MPs have stopped long and senseless practice in submitting amendments to the Law on budget justification, in order to change capital budget. Even though the amendment had been adopted, it hasn’t created the change regarding the Law, or any new obligation for the Government.

Instead of the amendments, Parliament unanimously adopted conclusions with the Law on budget, regarding agreed capital budget changes, adding six new projects this year. This practice is not new – in previous years, MPs tended to adopt conclusions on Law on budget, in order to pressure Government to implement certain capital projects. Conclusions would not had been implemented, and the Government would not had given the reasons why the certain conclusion, even though supported by the majority of MPs, had been disregarded.

We have been alerting the Parliament about this problem, during the budget discussions on the Parliamentary committee for the economy, finance and budget, and in our analyses on budget adoption process.

Currently, the capital budget, as the most important part of the national budget for the citizens, is at the same time the least transparent.

Annual Law on budget does not contain list of the capital projects (which is only part of the justification). All projects are summarized through the budgets of the Directorate of Traffic and Directorate of Public Works and divided to general categories, such as local infrastructure expenditure, construction expenditure etc. Therefore, MPs assured bigger budget for a certain position within these two chapters, which doesn’t mean that this very purpose will be fulfilled, i.e. that submitted capital budget is going to be implemented.

MPs have decided on the capital budget for 2016 – including more than 300 million € for over 100 projects, justified on ten pages – without previous insight in the spatial plan and other documentation. Parliament has put itself before fait accompli, by delivering the capital budget within the overall law proposal on budget. Therefore, it is more correct to say that Parliament only concludes the capital budget, rather than considering it or adopting it.

The only solution is to systematically change the Law on budget and fiscal responsibility, so that annual Law on the budget contains the article which would name all the capital budget projects. This amendment to the Programme of public finances management reform 2016 – 2020, was our recommendation, unsupported by the Ministry of Finances.

Significant leap forward would be to include the Parliament in the establishment of the capital budget, which is the most sensible period to contribute to its content. In order to change the existing situation, legal procedure should be amended, therefore enabling main parliamentary committee to gain better insight into the capital budget draft, to give its opinions and suggestions, which the Government should take into consideration during implementing those suggestions.

We have suggested this solution during adoption of the systematic Law on budget and fiscal responsibility, without Government’s, or even more surprisingly, MPs understanding.

In short: if the Parliament wants to create key impact on the most important component of the annual budget, than it must undertake the task and create that possibility for itself, through changes of the systematic Law on budget and fiscal responsibility. All the other attempts, conclusions, changes in justifications and suggestions obligate no one else but MPs to recognize the lack of their execution.

Marko Sošić
Public policy researcher

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Interview for daily “Dan“ – Stevo Muk: Anti-corruption institutions are not prepared for the election year

The president of the Managing board of the Institute Alternative (IA), Stevo Muk, said in an interview for daily “Dan” that the anti-corruption institutions are unprepared for the election year. He also pointed out that the violations of the law marked the establishment of the Agency for Prevention of Corruption.

The beginning of implementation of new set of anti-corruption laws and the establishment of new institutions that should contribute to a more efficient fight against corruption have marked previous year. Special Prosecutor’s Office started operating in July last year and on 1st January this year, the Agency for Prevention of Corruption has announced that its establishment represents ” a beginning of a new stage in the overall efforts of Montenegro in combating corruption”.

Institute alternative is closely monitoring work of this newly established institution, and within the project “Governance for Montenegro’s Growth: It depends on us!”, financially supported by Regional Cooperation Council, seeks to improve the implementation of the Strategy „South East Europe 2020“ in terms of good governance and fight against corruption in Montenegro.

  • Agency for Prevention of Corruption started to work on 1st January. IA has repeatedly pointed to omissions in the establishment of this institution. How do you think it may affect the beginning of its work?

– The establishment of the Agency so far has been marked by an obvious violation of the law. The public was deprived of important information that were considered recommendation and precondition for the appointment of director and members of the Agency’s Council. The budget of the Agency has been determined without previously adopted Rulebook on internal organisation and systematisation. Vacancies for new jobs were announced in late December, which means that the recruitment process will probably “stretch” into 2016, and thus „postpone“ the results of the Agency’s work for a while.

The delay in fulfilling formal conditions for beginning of work of this institution, blocking the appointment of another candidate for member of the Agency’s Council from the NGO sector, the appointment of one member with violation of the Law on State Audit Institution, the appointment of director connected to the top of Democratic Party of Socialists, cast a shadow on the ability of the institution to seriously tackle the many challenges under its competence, such as conflicts of interest or control of the financing of political parties and election campaigns, especially in forthcoming election year.

  • The establishment of  the anti-corruption institutional framework is one of the priorities for Montenegro within implementation of the Strategy  „South East Europe 2020“. What does a successful fight against corruption mean in the context of this Strategy?

– „South East Europe 2020“ is a strategic document which provides useful guidelines for combating corruption in Western Balkans, in particular because it highlights measures that, in addition to being aimed at reducing corruption, also seek to promote economic growth through creation of business-friendly environment. Therefore, the priority on which this strategy puts emphasis, in addition to improving the anti-corruption institutional and legislative framework, entails also competitive and transparent public procurement. However, the public procurement system in Montenegro abounds in problems ranging from a lack of transparency, weak control, lack of political accountability and misdemeanor and criminal liability for frequent abuses.

In the regional context, of course, regional cooperation is necessary. As recently pointed out at the conference that we organised with the support of Regional Cooperation Council, boundaries should not constitute barriers to the prosecution of conflict of interest of public officials or other abuses and organised crime.

  • According to the Balkan Barometer, survey conducted last year within the Regional Cooperation Council, 65 % of respondents consider that the fight against corruption in Montenegro is not efficient enough. What do you think that the institution should do in order to make this process more efficient?

– For achieving long-awaited results in the fight against corruption it is not only necessary to strengthen the anti-corruption institutional framework, but also to enhance proactivity of those institutions on all levels. Having that in mind, the cooperation between Police, State prosecutor’s office, newly-established Agency, State Audit Institution and other institutions is extremely important. As you already know, we are still waiting the appointment of the Head of Special Police Unit, who should further enhance this cooperation. Networking, mutual trust and timely exchange of information between aforementioned institutions are crucial for ensuring measurable results, as well as the recommendation for actors on the regional level through Strategy “South East Europe 2020”.

Abuses of Law and Frauds

According to the Strategy “South East Europe 2020”, competitive and transparent public procurement procedures are one of the key priorities for creating the business-friendly environment. However, findings of research conducted for IA has showed that more than 60% of citizens think that the abuses of law and frauds are happening frequently when it comes to the public procurement procedures.

Interview originally published in daily “Dan”

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Happy New Agency! – Establishment of the Agency for Prevention of Corruption in Montenegro

On 1st January 2016, when it was supposed to be fully operational, the Agency for Prevention of Corruption employs less than 50% of estimated number of its employees. Its premises are not adapted and other numerous preconditions for unhindered performance of its complex competences remain unfulfilled. During its establishment, several laws were violated, including the Law on State Audit Institution, the Law on Prevention of Corruption, the Law on Prevention of Conflict of Interest, with the potential violation of several others. Additionally, even before it had started to work, controversies over appointments of director and one member of the Agency’s Council shed doubt on capacities of this institution to be independent and impartial anti–corruption body.

Other steps in the establishment of the Agency have also sparked many controversies. Its budget proposal is established in a minimum amount defined by the Law on Prevention of Corruption. The Director of the Agency has circumvented the Law, by excluding the Council and the Parliament from the preparation of the Agency’s budget. The budget categories are, to a large extent, determined “arbitrarily”, since the budget proposal was determined by the Government before the Council has adopted the Rulebook on internal organisation and systematisation of Agency’s job positions. Rulebook on internal organisation and systematisation significantly deviates from the suggestions of experts from the European Commission.

The interested parties have neither been consulted during the process of drafting bylaws from the jurisdiction of the Ministry of Justice nor these bylaws have been presented to the public. All the required documents that the Council of the Agency was obliged to approve have yet to be adopted. The serious endeavour of developing automated system for data exchange between state authorities is still ahead the Agency.

Since his appointment, the director of the Agency has been constantly restricting the transparency of the Council’s work. Other obstructions are in place as well. Circumvention of the law, weak capacities, delays in execution of its administrative duties, as well as the established patterns of behaviour of the managerial staff do not give much hope that the new Agency can fulfil its task.

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Reaction of Institute Alternative to the press release of the Ministry of Foreign Affairs and European Integration

On the subject of the response of the Ministry of Foreign Affairs and European Integration (hereinafter: MFAEI) to our press release “The European Commission report on corruption at the local level is being concealed”, we wish to inform the public that Institute Alternative (hereinafter: IA) was informed about the stance of the European Commission (hereinafter: EC) on this issue in a response to our request delivered by MFAEI on 3 August 2015. In the response to our request for free access to information, it was stated that the reports compiled within expert missions are the property of the Commission, but that the EC shall decide separately on each case whether or not the report should be made available to the interested party. Accordingly, IA submitted the request to the MFAEI on 31 December 2015 seeking the report of the expert mission which relates to corruption at the local level. Responding to our request, the MFAEI informed us that the report is classified and under the designation “restricted” and that therefore we could not obtain it (the response of the MFAEI is available at the end of this text). Hence, we were not informed about the decision of the EC in this particular case, but only that the request is denied because the document is classified.

From the response stating “even though we knew that the report in question is not yet complete” is not clear whether MFAEI is in possession of this “unfinished work”. If the answer is negative, then in the rationale behind the decision should have stated that the Ministry is not in possession of the requested document.

Additionally, the MFAEI did not state in its response that the Commission was contacted, or that the EC has not denied our request, but stated that the document has not yet been completed. Finally, our reaction is driven by the question “Did you decide on the availability of the document which is not your property”, since such conclusion follows from the MFAEI’s response.

Following the MFAEI’s press release, we submitted another request to the Ministry seeking the EC’s stance regarding our previous request demanding the report on corruption at the local level because it was not delivered to us nor did we know it existed (the copy of the request submitted is available at the end of this text).

IA will continue to insist on the full transparency of the negotiation process. We will address relevant Montenegrin institutions, as well as the European Commission explaining why it is important to allow access to its reports, which would previously be redacted in order to ensure protection of personal data and information on ongoing investigations.

Jovana MAROVIĆ

Research Coordinator

Decision of MFAEI on the request of IA delivered on 13 January 2016 (available only in Montenegrin)

Request of IA submitted to the Ministry on 15 January 2016 (available only in Montenegrin)