Montenegro opened accession negotiations with the EU in June 2012, being the first country to undergo the new approach, which frontloads rule of law criteria. The new approach places emphasis on Chapter 23 (Judiciary and Fundamental Rights) and Chapter 24 (Justice, Freedom and Security). The two chapters are opened early in the process, with the aim of allowing the country to adjust to complex reforms, which alongside technical aspects, capacity building and legislative alignment, require a track record of fighting organized crime and high level corruption.
Between June 2012 and January 2018, Montenegro opened 30 chapters and provisionally closed 3 chapters. In addition, following the “State of the Union” address by Commissioner Juncker, the newly announced Enlargement Strategy for the region outlined a clear perspective for the first time, with a potential date for Montenegro’s accession to the EU of 2025.1
Government officials often use the opening of negotiation chapters as an indicator of success. Nonetheless, the closure of most chapters is still pending. This depends, at least officially, on meeting selected interim benchmarks, which should lead to the closing benchmarks. The aim of this analysis is precisely to assess the selected interim benchmarks within Chapters 23 and 24. By benchmarks we imply concrete requirements which key EU enlargement documents specifically formulate for the Montenegrin authorities, whose conditions for implementation signify further progress along the country’s path to EU accession.
Apart from assessing the content of benchmarks and their adequacy for the domestic context, as well as moni- toring their implementation, we have tried to assess the monitoring tools used to judge the implementation of benchmarks and the achievement of the objectives which they define. In our view, this can serve as an indicator of the effectiveness of EU conditionality, and should provide guidance for enhancement of the current bench- marking system and EU conditionality in general.
The selected benchmarks encompass various aspects of Montenegro’s alignment with EU standards: legal and technical as well as the required track record of prosecuting organized crime and corruption, or the emphasis on establishing merit-based recruitment in public administration and the judiciary. The importance of analysing benchmarks is indicated by the lack of qualitative discussion about the content and consistency of EU conditionality. On the other hand, some countries are labelled frontrunners or stragglers in the process, despite a lack of in-depth analysis of the conditions imposed and their actual compliance with them.
The selected benchmarks are taken from official documents which outline the key conditions that Montenegro needs to meet for the two chapters, especially the EU’s common positions on the two chapters and their action plans. This analysis forms part of a wider regional project, which permits comparison of the benchmarks set for the two countries that are currently undergoing accession negotiations – Montenegro and Serbia. Conditions set for other candidate countries, as outlined in other enlargement documents (country reports; roadmaps; Enlargement strategy), have also been taken into account.
The Draft Law on Public Procurement makes certain steps towards alignment with EU directives regulating public procurement, especially in terms of introducing new procedures prescribed by directives. Also, procurement of small value is partially better regulated. We have highlighted the issue of poor regulation of this type of procurement in the currently valid law on several occasions.
Hereby, we primarily refer to introducing the obligation of collecting at least three offers for these procurements, as well as the obligation to publish tenders and invoices/contracts in an electronic newspaper. However, we see space for further improvement of the solutions proposed in the draft which are to regulate procurement of small value.
Also, there is still space in the current draft for additional improvements in the part regulating centralized procurement, public procurement planning, criteria for selecting the most economically advantageous offer, regulation of procurement in the area of security and defense, as well as misdemeanor liability for violations of the Public Procurement Law.
When it comes to procurement in the area of security and defense, it is rather important to consider the Law on Internal Affairs, which is under preparation, in order for the Law on Public Procurement and the Law on Internal Affairs to be harmonized on time in the part dealing with regulation of this area.
The Agency for the Prevention of Corruption (ASK) adopted a Decision stating that the member of the Senate of the State Audit Institution (SAI), Zoran Jelić, is not in conflict of interest due to his engagement with the Prva banka Crne Gore as a member of the Audit Board for more than nine months during which he earned nearly 6.000 euros. Thus, the Agency stood in defence of yet another DPS official and proved its political bias and selective approach in the application of law, in regard to which we expressed our concerns on several occasions.
The Agency for the Prevention of Corruption published yesterday Decision stating that Zoran Jelić did not violate the Law on the Prevention of Corruptionby being engaged at Prva banka Crne Gore as a member of the Audit Board in the period from 17 March to 28 December 2017, during which he received a monthly compensation of 650 euros or 5.850 euros in total.
With the Decision, the Agency also found that Zoran Jelić did not violate the Law on the Prevention of Corruption by not reporting in its asset declaration shareholding in “ET KOM”, company in which he is one of the founders, according to the data from the Central Register of Business Entities (CRPS). The Agency adopted the Decision based on our Request for initiating procedure for determining violation of the Law on the Prevention of Corruption in the part referring to completeness and accuracy of data in income and assets report and determining conflict of interest and restrictions in the exercise of public functions, dated 12th and 19thMarch 2018
We believe that by adopting this decision, the Agency once again stood in defence of party interests of the DPS cadre by turning the blind eye to the apparent conflict of interest of a member of the SAI Senate, Zoran Jelić, who by his membership in the Audit Board of Prva Banka provided himself material gain and subordinated public to private interest.
It is stated in the Agency Decision “pursuant to Article 9 of the Law on Prevention of Corruption, Zoran Jelić may be engaged in scientific, educational, cultural, artistic and sports activities and acquire income and report to the Agency accurate and complete data on income acquired through the exercise of these activities or tasks, given that the aforementioned is not prohibited by the Law on the State Audit Institution”.
However, membership in the Audit Board of the Prva banka Crne Gore cannot, under any circumstances, be considered as any of the activities stated in the Agency’s Decision. On the contrary, the membership in the Audit Board is indisputably professional activity, which is prohibited by the Law on the State Auditing Institution in Article 35, which we pointed out in our submission to the Agency. This is supported also by the Article 39 of the Law on Banks stipulating a wide range of competencies and obligations of a member of the Audit Board, and by the fact that Jelić received a monthly compensation in the amount of 650 euros on the basis of performing the job. However, nowhere in its Decision has the Agency dealt with this fact, which is indisputable and evident, and which would in itself be sufficient to establish a conflict between public and private interest of Zoran Jelić.
Likewise, the Agency did not address our allegations that, as a member of the Audit Board of Prva banka, by performing this demanding job on the basis of which he received compensation and achieved material gain, contrary to Article 41 of the Law on SAI Zoran Jelić raised doubts that he is neglecting fulfilment of his public task (as a member of the SAI Senate) in favour of private-economic interests (as a member of the Audit Board of Prva banka) and that contrary to Article 7 paragraph 1 of the Law on the Prevention of Corruption he subordinated public to private interest.
When it comes to the fact that Zoran Jelić did not report the company “ET KOM” in his asset declaration, the Agency Decision states that Zoran Jelić proved in the course of proceedings that the founders of this business entity initiated voluntary liquidation procedure in 2003, which the liquidator was supposed to execute and accordingly request deletion of the company “ET KOM” from the CRPS. However, the liquidator has not done so until the Agency initiated proceedings against Jelić, pursuant to our request. Thus, the Decision on voluntary liquidation was completed on March 22nd 2018 – 15 years after the Decision was made. Until then, the company “ET KOM” was registered in the Central Register of Business Entities, which means that the company formally existed, and Jelić, as one of its founders, did not report the share in this company in his asset declaration. Still, the Agency claims that Jelić did not violate the Law on the Prevention of Corruption by not reporting complete and accurate data in the income and assets report.
Finally, it is symptomatic that the Agency for the Prevention of Corruption has for two years resisted our persistent insistence to publish all the decisions made in its proceedings, arguing that publishing decisions that do not determine violations of the Law on the Prevention of Corruption without the consent of a public official to whom the decision refers to, would be contrary to paragraph 2, Article 39 of the Law.
However, this time they acted in a different manner. Namely, the Agency published the Decision stating that Zoran Jelić did not violate the Law on the Prevention of Corruption and thereby demonstrated that transparency is not a problem when it serves exclusively party interests of DPS and protection of individuals from the party ranks, which is obviously the primary purpose of the Agency for the Prevention of Corruption.
The Agency for the Prevention of Corruption has been timely and through formal channels of communication invited to delegate as many representatives as it wants and can to participate in our event and discuss the topics with us and other participants in an open dialogue. Despite the fact that the invitation to participate was sent in a timely manner – seven days before the event, and our persistent insistence that the Agency delegates its representatives, the representatives of the Agency did not accept our invitation.
The e-mail we received from the Agency reads “due to increased workload in this period and numerous previously planned work obligations, the Agency is not able to delegate representatives who would participate in the panel,” claiming that none of its 55 employees can attend the gathering.
On the other hand, “increased workload” did not prevent the Agency to send its reaction denying publicly available data on the Agency’s website immediately after the event. In its reaction, the Agency denounces information that was not stated at the event, and in support of it gives new data that the Agency selfishly keeps away from the public, presents only partially and uses in the way it best suits its own interests.
According to asset declarations of Mr Radonjić and Marković for 2016 available on the Agency’s website, these officials did not give consent to the Agency for access to their bank accounts, which was stated at the event and proof of which we provide in the attachment to this reaction. If the Agency had some other information, it was supposed to proactively inform the public and modify the information on its website so that the public would be aware of this.
(Im)partiality of the Agency is best seen in the light of its reaction to our findings whereby it first disputes consent for the Prime Minister and then for the director of the institution. Thus, the Agency once again steps out to defend the highest public official with close ties to its director, which we have repeatedly pointed out as a problem that sheds doubts on the impartiality of the work of the Agency.
In regard to disputed results of the public opinion survey, we note that the questions from the survey that Ipssos Agency conducted for our needs aimed at assessing impartiality of the Agency, the question which the survey conducted by DAMAR Plus for the needs the Agency did not deal with it. Nevertheless, we consider the question of impartiality as a very important one for the integrity of the Agency and citizens’ trust in its effectiveness, which is why the Agency should also include it in its forthcoming public opinion surveys.
Finally, although the available data confirm our findings, we remain open to exchange views and information with the Agency’s representatives. We are glad that the Agency announced that it will provide a more detailed overview of our findings, as this is a prerequisite for making progress in important areas of its work and enhancing its transparency.
The Agency for the Prevention of Corruption is not transparent and has a non-uniform approach to public officials, while asset declarations for the last year are currently available for only five ministers in the Government, none of which gave Agency consent to access his/her bank accounts.
This was stated at the Panel Discussion “Verification of Asset Declarations and Conflict of Interest – Reforms or Status Quo?”, organised by Institute Alternative (IA) in the framework of the project “Towards Qualitative Signs of the Anti-corruption Efficacy”, implemented with the support of the Embassy of the Kingdom of the Netherlands.
Public Policy Researcher in IA, Ana Đurnić, said that the key problem is that the two related areas, prevention of conflict of interest of public officials and control of asset declarations are artificially separated in the Agency for the Prevention of Corruption.
“These are completely separate processes conducted by different persons and in different sectors. We recognised this as a key issue and the Agency confirmed to us that when they cross-check asset declarations of public officials they do not check whether there is a conflict of interest, which they evidently could do on the basis of the data declared by public officials and civil servants in their asset declaration”, explained Đurnić.
There are at least two cases confirming that the Agency does not deal with the conflict of interest when working on verification of asset declaration, said Đurnić.
“The first case is the case of the former Minister of European Affairs Andrija Pejović, whose asset declaration was cross-checked by the Agency, but it failed to register an obvious conflict of interest. Only in the repeated procedure have they found that there was a conflict of interest and performance of incompatible functions. On the other hand, there is the case of Zoran Jelić, who, while serving as an MP, also served as a civil servant employed in the Employment Agency of Montenegro, “said Đurnić.
She considers that it is not enough for the Agency for the Prevention of Corruption to only determine if a public official has reported all that he or she owns, but it also needs to check whether the functions he/she performs result in a conflict of interest and whether officials receive compensations “which they receive regularly from the citizens’ money”, in line with the law.
The Agency for the Prevention of Corruption is not transparent and has non-uniform approach to different public officials, emphasised Đurnić.
“According to the public opinion survey conducted by the Ipsos Agency in November 2017, only 22 percent of citizens believe that the Agency works how it should, i.e., that it treats all public officials in the same manner, regardless of whether they come from ruling or opposition parties. About 40 percent of citizens consider that the Agency is more likely to treat preferentially the officials of the ruling party than to do the same with the opposition officials, “said Đurnić.
The most important but least performed type of control that the Agency for the Prevention of Corruption performs, as she clarified, is a complete check.
“We recognized as an issue that, as a prerequisite for this type of control, the Agency’s bylaw prescribes presence of indications based on facts that the person to whom the data refers to has declared inaccurate, incomplete information or that there is a disproportionate increase of assets ” said Đurnić.
She explained that no matter what the public officials own and how they acquired money to buy assets, the Agency will not deal with it until there is a large increase or a public official forgets to report some assets.
The number of checks in which the Agency for the Prevention of Corruption verified the origin of assets is at the lowest level, stated Đurnić.
“In 2017, there were only 25 checks of this kind, while in 2016 there were 49. And in all these checks it was established that the public official proved the origin of his/her assets, ie, the Agency found there is nothing to contest in the checks it conducted, “said Đurnić.
She noted that the Agency for the Prevention of Corruption stated that more than 70 percent of public officials and civil servants gave consent for access to their bank accounts, but she underlines that this statistics is worse at the level of highest public officials.
“Half of the Government did not give consent to the Agency to access their bank accounts in 2016, while in 2017, asset declarations are available for only five ministers in the Government so far and none of them gave their consent to the Agency to access bank accounts, “said Đurnić.
She pointed out that the Director of the Agency for the Prevention of Corruption and his assistant are among those who did not give consent for access to their bank accounts.
“There is also the Prime Minister himself, as the highest office in the Government, who also does not want the Agency to control his bank accounts. The highest public officials should be on the list of priorities, not the local public officials at the lowest levels, “said Đurnić.
According to her, the Agency for the Prevention of Corruption cannot justify its lack of performance with the lack of capacity.
“The Agency has a statutory minimum budget that has to be allocated to it and it amounts to 0.2 percent of the current budget for that year. About 20 percent of the minimum budget that the Agency is provided with each year remains non-distributed. It is important to note that in two years the Agency spent about 70 thousand euros on temporary service contracts, “said Đurnić.
She said that when it comes to connecting to institutions’ databases, the Agency for the Prevention of Corruption is still not connected to the Public Procurement Administration.
“It is very important that the Agency determines who is connected to whom in the public procurement system, that is, what companies are linked to public officials, so that this perhaps most obvious conflict of interest is prevented or processed in cases where the damage has already been done,” said Đurnić.
Monitoring coordinator in the NGO Network for Affirmation of NGO Sector (MANS), Zorica Ćeranić, said that the data is disappointing as in 2016 and 2017 only 40 misdemeanor proceedings were initiated, which, as she said, is a very small number in relation to four, five thousand public officials and civil servants checked.
“It is worrisome that no case has been sent to the prosecution, and that during cross-checking of assets, the Agency only checks what the officials declared. They do not undertake a deeper analysis, i.e. a deeper check of assets that are not declared and shown in asset declarations, “assessed Ćeranić.
Public Policy Researcher in IA, Dina Bajramspahić, believes that the work of the Agency for the Prevention of Corruption will be rendered meaningless if it is reduced to the collection of asset declarations of public officials.
“After submitting asset declaration for so many years, public officials have to a large degree perfected these declarations. Those who did not know that high-value weapons are to be declared, now declare them. Those who did not now that paintings are to be declared, now declare them and declarations are copy pasted from year to year “said Bajramspahić.
She considers it crucial to follow differences of assets value in relation to income.
“If there is an example that a public official has acquired an apartment of 200 square meters, and in that year he/she earned 20 or 30 or even 40 thousand euros, the Agency is obliged to register that difference and call a public official to say which money covered this property value,” Bajramspahić said.
Executive Director of Politikon Network, Jovana Marović, believes that the core issue is that the Agency for the Prevention of Corruption is not independent since its beginning.
“Apart from the lack of independence and impartiality of the Agency, the European Union (EU) also points to the lack of expertise. In the most recent report on the state of play in chapters 23 and 24, EU points out serious shortcomings in justifying decisions related to conflict of interest. The problem is that the Agency cannot appropriately justify its decisions because they are not in line with what they should be, “Marović said.
The Secretary General of the Ombudsman, Ivan Krkeljić, said that the Law on Prevention of Corruption is not harmonized with the Law on Administrative Procedure.
“In the Law on Administrative Procedure there is a basic principle of declaring data ex officio. This would mean that, if these two laws were harmonised, the Agency for the Prevention of Corruption would have to determine facts relating to public officials ex officio, “Krkeljić explained.
Assistant Director of Public Procurement Administration, Mara Bogavac, said that this institution, in accordance with law and established practice, has cooperation with the Agency for the Prevention of Corruption in the form of exchange of necessary information and “has signed an agreement on mutual cooperation in order to strengthen administrative capacities of all representatives in the public procurement system “.
Successful public administration reform is one of the key criteria for Montenegro’s accession to the European Union and it is under (the watchful eye) of European institutions. However, if this process is successful, its benefits should be felt by Montenegrin citizens due to the simplification of administrative procedures, improvement of services and the faster and the better realization of citizens’ rights before the state administration bodies. The reform should provide better control over the legality and accountability of organizations with public authority and more rational approach to the use of human and financial resources. In addition, a more functional and efficient system of local self-government should respond to the needs of the local population.
Public administration reform, therefore, should contribute to a better quality of the life of Montenegrin citizens.
However, each public decision-making process has a different impact or influence on different social groups, including men and women. Gender-sensitive reform policies are necessary to ensure equal access of both women and men to the government services, labor market and equal representation in decision-making places. Equality between women and men is an important development goal in itself and has a decisive impact on poverty reduction and on inducing the inclusive growth and societal development. Nevertheless, processes such as planning, budgeting, and administration are often considered gender-neutral. As a result, the gender dimension of the public administration reform in Montenegro is poorly visible, both in the rhetoric of those who lead this process and in the current Strategy and Action Plan for Public Administration Reform.
Gender inequality persists in our society, in our social, economic and political life. Usually, it is additionally encouraged by the laws, policies and decision-making procedures that lack gender perspective. The most recent example represents a recent reform of social and child protection, which contributed to discrimination of women by withdrawing women from labor market through the introduction of allowances for mothers with three or more children. It also strained the state budget and almost led to the collapse of an already inefficient social protection system. The lack of gender perspective in this area led to the growing poverty of women and children with the experience of family violence and to the difficult material and social opportunities of single parents and their children.
To some degree, encouragement represents the fact that the number of women on the decision-making positions has been rising, and that, according to the most recent reports, the participation of women in higher (top) positions in public administration is not far away from European average. However, that cannot guarantee that gender perspective will be incorporated into the political and other debates. This is neither guaranteed by specific policies, regulating the issues of gender equality and position of women, as long as the women are the only ones who are dealing with them and the majority is not interested in their effective implementation. Political will means the clear allocation of human and financial resources for the realization of envisaged measures and activities, and the impact assessment of policies on the quality of life of women, and therefore of the rest of the society. This is not reflected in reports on the application of sectoral strategies such as the Strategy for achieving gender equality, the Strategy for Protection against Violence against Women and Domestic Violence, which contain only information on realized activities, but no information on their actual impact on the lives of women in Montenegro. Moreover, they do not deal with the implementation problems and they do not provide recommendations for improving the state of play. There are not enough funds for financing of gender equality policies in the state budget (gender sensitive budgeting). On the contrary, the realization of these policies depends on donors, with no information on the exact amount secured by the donor and the exact amount contributed by the state.
Therefore, the gender analysis and gender budgeting should be the obligatory part of every initiative for public policy development or amendment, what is, after all, an obligation prescribed by the Law on Gender Equality. This would ensure that public administration reform is based on the specific needs of women and men – especially women and men from poor and marginalized communities, and to ensure that public policies, investments, and services respond better to community needs.
Maja Raičević
Executive Director, Women’s Rights Centre
The blog was produced within the project “Civil Society for Good Governance: To Act and Account!”, Implemented by the Institute Alternative, Bonum, Nature, New horizon and Center for Research Journalism, and funded by the European Union within the Civil Society Facility , and the Balkan Trust for Democracy, a project of the German Marshall Fund of the US (GMF). The contents of the blog are the sole responsibility of the author and can not be taken to reflect the views of the donors.
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This was stated at the Panel Discussion “Verification of Asset Declarations and Conflict of Interest – Reforms or Status Quo?”, organised by Institute Alternative (IA) in the framework of the project “Towards Qualitative Signs of the Anti-corruption Efficacy”, implemented with the support of the Embassy of the Kingdom of the Netherlands.
