There is no possibility for the public to verify that the Agency for the Prevention of Corruption checks credibility of public officials’ declared assets, so we asked the Agency’s supervisory body to control its work in this important area.
Institute Alternative has requested reports, records or official notes on the conducted controls of asset declarations for six public officials. However, the Agency rejected access to this information, stating that income and asset reports are published on its website, as well as information on the established breaches of the law.
On the other hand, the proceedings of verifying completeness and accuracy of data from income and asset reports is not accessible to the public, according to the Agency.
However, we did not request access to asset declarations nor proceedings and we did not request decisions establishing a violation of the law. We requested a document concluding proceedings – a report on the conducted control, which is to serve as evidence that control was conducted at all, regardless of its outcome.
The proceedings, if conducted, must be formally concluded – by a report, an official note or any other form of written record that the proceedings were conducted. Otherwise, there is no evidence on the Agency’s work in this important area under its competence.
Following this logic – by publishing exclusively decisions for public officials found to be in violation of the Law, the Agency can state that proceedings were conducted for any other official and that no irregularities were established but it can provide no evidence.
In this way, the Agency can protect absolutely every public official, and the public will never find out whether he or she has in fact violated the law and whether the proceedings were conducted at all.
Therefore, we submitted to the Council of the Agency for the Prevention of Corruption an Initiative for control of acting of the Agency in the area of asset declarations control. With the initiative, we asked the Council members to examine the way in which the Agency, i.e. its officials who conduct control of asset declarations, conclude the proceedings and whether there is a document accessible to the public that can serve as an evidence that the control has been conducted.
Indeed, the Law on the prevention of corruption does prescribe that the proceedings of verifying data from income and assets reports are not available to the public. Also, the Law prescribes that the decision establishing that a public official has not violated the provisions of this Law does not disclose his or her name, surname and function without the consent of the public official to whom the decision refers to.
However, there must be a written record of conducted control, at least in the form of an official note, which can and must be published and serve as evidence that the proceedings have indeed been conducted. Otherwise, the Agency asks us to take its word, and it did not deserve such trust by its work thus far.
The reaction of the Parliament of Montenegro regarding the decision of the Basic Court by which it issued interim order requesting the Parliament of Montenegro to reinstate Goran Đurović at the position of the RTCG Council member within eight days, until the completion of the judicial proceeding, is scandalous and represents an open attack of the ruling party on the judiciary. The Parliament, in its official press release, stated that by doing this the Basic Court “tried to render meaningless the division of powers into executive, legislature and judiciary established by the Constitution of Montenegro and in this manner tries to undermine the legal system of the state”.
Such unprecedented attack of the Parliament of Montenegro on the judicial system presents open party pressure on judiciary and can have far-reaching consequences on the entire society. The Parliament, i.e. MPs of the ruling majority with this demonstrate that they do not recognize the constitutional division of powers into executive, legislature and judiciary, nor do they understand the role of the judiciary in the control of legal acting of other branches. If they advert to the Constitution, it would be good for ruling majority MPs to read the Constitution that in Article 11 envisages limitations of powers by the Constitution and law and prescribes that relation of powers is based on checks and balances.
The ruling majority obviously believes that it is enough to have a Parliament in the system in which the majority would declare what is right and what not, and decide on who is guilty and who is not, while the citizens should not have any mechanism of legal protection from their arbitrariness.
Particularly worrisome are comments of the DPS MP, Marta Šćepanović, party trustee for the implementation and defence of unlawful Parliament decisions concerning dismissal of inconvenient members of the RTCG Council. Her statements that the Basic Court has become competent for the Parliament decisions overnight, and that this court cannot decide on Parliament decisions and that the Basic Court is deciding on the decisions of the Parliament of Montenegro for the first timeare not correct.
Namely, Marta Šćepanović, as the president of the Legislative Committee, as well as the parliamentary majority, should be the first to know that apart from the possibility of assessing the legality of decisions of the Parliament by the regular Basic Court, provided by the Constitution and the Law, there is already such practice in place as well. This practice has been established by the Supreme Court, the highest judicial instance. The matter is even more dismal for the parliamentary majority, since the Supreme Court defended the jurisdiction of the basic court in the dispute concerning appointment of members of the Agency for Electronic Media in which it determined the violation of the law by the Administrative Committee and the Parliament, based on the complaint of Slavica Striković.
Therefore, there is no doubt that the Basic Court is competent to re-examine decisions of the Parliament, although it is hard for the ruling majority MPs to accept the possibility that anyone could question their arbitrary and in certain cases unlawful work.
We appeal to the Council of the Basic Court to be persistent in the law enforcement, to resist the pressures and keep its integrity by defending the decision of its judge, especially in the light of the importance that unbiased, quality and efficient judiciary has in the context of establishing the rule of law as emphasized in the EU Strategy for the Western Balkans. There is no doubt that the judiciary’s handling of this issue will be of paramount importance for assessing the judiciary in the forthcoming EC report and we believe that the reputation of the judiciary is more important than interests of any political party.
Ana Novaković, Executive Director, Center for the Development of Non-Governmental Organisations (CDNGO) Daliborka Uljarević, Executive Director, Centre for Civic Education (CCE) Stevo Muk, President of the Governing Board, Institute Alternative (IA) Zlatko Vujović, President of the Governing Board, Center for Monitoring and Research (CeMI)
We commend the decision of the Basic Court in Podgorica which establishes temporary measure that orders the Parliament of Montenegro to return Goran Đurović at the position of the RTCG Council member within eight days, until the judicial proceeding is completed, all in order to prevent consequences that cannot be compensated later on.
We have already pointed to the actions of the Parliament that resulted in the unlawful decision on dismissal of Goran Đurović. The decision of the Basic Court brings back hope that judicial protection can be effective and that citizens can be protected from unlawful decisions of the Parliament. Decisions of MPs on individual rights shall be subject to the judicial protection, as the practice indicates that MPs are led solely by party directive instead of respecting the law when it comes to such rights. Citizens must be protected from such actions of MPs by the independent judiciary.
We expect the Parliament of Montenegro to act in line with the decision of the Basic Court and to return Goran Đurović into the Council until the final decision. That would also be an important step in the process of setting previous unlawful acts of the Parliament of Montenegro towards Goran Đurović and would contribute to stopping further discrediting of the highest legislative institution.
We express the hope that in further procedure courts will be led by the principle of the protection of the rule of law in Montenegro and that they will be resistant to various political and other interests and influences.
Ana Novaković, Executive Director, Center for the Development of Non-Governmental Organisations (CDNGO) Daliborka Uljarević, Executive Director, Centre for Civic Education (CCE) Stevo Muk, President of the Governing Board, Institute Alternative (IA) Zlatko Vujović, President of the Governing Board, Center for Monitoring and Research (CeMI)
We welcome the agreement reached at the meeting yesterday between representatives of the Government of Montenegro and RTCG regarding the signing of the 2018-2020 Broadcasting Services Contract.
However, the public has the right to accurate information, so it should be specified that information published yesterday by the Media Directorate and Public Relations Department of the Government of Montenegro is not true: “representatives of the Government headed by the Minister of Culture Aleksandar Bogdanović and representatives of the Radio and Television of Montenegro headed by the President of the Council, PhD Vladimir Pavićević, fully agreed on the text of the agreement and agreed that a harmonized document should be submitted to the Government as soon as possible in the prescribed procedure.”
Only the RTCG Council can give consent to the text of the contract and all that has been agreed upon is of no substance until it is confirmed by the formal bodies of the RTCG and the Government itself. Hence, the fact remains that the contract in question has not been signed for several months, just as noted in our press release.
The Government of Montenegro and its services should keep to the facts and not spread fake news, and instead of polemics with non-governmental organizations finally complete this work and unblock all contracts affecting the functioning of the RTCG, through which they try to exert political pressure on RTCG.
The Media Directorate and Public Relations Department devoted a significant part of its reaction to painting an image of positive atmosphere from the meeting and providing unsustainable qualifications on the account of non-governmental organizations we manage. These unnecessary and digressive details are not of interest to the public. But, it is in the public’s interest that the Government signs the 2018-2020 Broadcasting Services Contract and approves the RTCG collective agreement. And we will persistently remind the Government of these obligations, and inform the public about abuses of power mechanisms in party interests.
The Media Directorate and the Public Relations Department have not disputed with a single word the allegations that the Government affects the exercise of the employees’ rights and the functioning of the RTCG by refusing to sign the RTCG collective agreement. The RTCG management delivered the collective agreement to the Government for approval four months ago and this is an indisputable fact. We have already pointed out the absurdity of the Government’s explanation that they cannot approve this contract until the new Labor Law has been adopted. It is also interesting that this Government approach applies only to the RTCG collective agreement while at the same time the Government works in haste on collective agreements of other entities, which the concerned public does not fail to see.
Also, we did not get an explanation from the Media Directorate and Public Relations Department of the Government of Montenegro, as to why the Government does not send its top representatives to the most viewed RTCG TV shows in the form of dialogue. Instead of failed attempt to blur the facts, the Public Relations Department of the Government of Montenegro could advise the Prime Minister and members of the government to meet their obligations to inform the public on their work and to exchange their arguments with persons of different opinions, instead of subordinating this obligation to the party directive.
The Government should do its work, just as the Parliament of Montenegro and the Agency for the Prevention of Corruption should do their work, and interested public will easily assess results of this work. Therefore, the Government should demonstrate that it is suspending the pressure on RTCG, with which it has already seriously harmed the national interests, by unblocking these two agreements and by taking responsibility to present its work through its highest representatives also on the public broadcasting service RTCG.
Ana Novaković, Executive Director, Centre for Development of Non-Governmental Organizations (CDNGO) Daliborka Uljarević, Executive Director, Centre for Civic Education (CCE) Stevo Muk, President of MB, Institute alternative (IA) Zlatko Vujović, President of MB, Centre for Monitoring and Research (CEMI)
The Government of Montenegro has significantly caused problems which the RTCG faces over the last period through institutional mechanisms at its disposal, demonstrating in this way that it primarily protects the party, or more precisely, interests of the ruling Democratic Party of Socialists (DPS) and not the public interest.
Namely, the Government has been blocking for months the signing of the Government and RTCG Contract on the provision of public broadcasting services 2018-2020, which is the obligation resulting from the latest amendments to the Law on Public Broadcasting RTCG. This is followed by attempts by the Government to include through this contract obligations that are not imposed by similar contracts to any other public broadcaster in democratic countries, and by which the Government would also formally annul the independence of the public broadcaster by taking over what falls under the remit of the RTCG Council.
Also, the Government refuses to adopt the RTCG collective agreement. The agreement, which the RTCG management submitted to the Government for approval four months ago, received a positive opinion from the Ministry of Finance, but the Ministry of Culture does not want to propose signing to the Government because it is supposedly waiting for the adoption of a new Labor Law, for which no one knows yet when it will be adopted by the Parliament of Montenegro. This rational is unknown in practices of well-organized democratic states, because it leads to complete legal uncertainty and thus undermines the rule of law foundations.
Through the blockade of these two contracts, the Government exerts political pressure on the RTCG dissatisfied that the public broadcaster is not a party media and that it has made first, small steps towards transformation into a true public broadcaster in the service of all citizens.
In addition, its functionary in charge, General Director of the Directorate for Media, Željko Rutović, through his public appearances on media close to the authorities, fully uncovers the government’s action against the current RTCG leadership. Otherwise, Rutović had no reaction to numerous examples of unprofessional and illegal reporting of the media that now serve him as a megaphone against RTCG, nor did he have any objections to the work of RTCG when it was headed by his sister, and when RTCG recorded far greater number of complaints about reporting and far less trust among citizens of Montenegro.
Finally, it is worth looking into the arguments of senior government officials that they make in communication with the representatives of the most influential institutions and the EU and NATO member states. They claim that the public broadcaster does not reflect the majority views in Montenegro, which best illustrates to what extent the authorities do not understand the concept of freedom of the media and public broadcasters. Public broadcasting management is not elected in the elections with a reason – because reporting of public broadcaster by its mission and law should reflect pluralism of opinion and not ruling party attitudes.
Also, the Government strategy to not send its top representatives to the most viewed RTCG TV shows in the form of dialogue is futile. With this, the Prime Minister and members of the Government who respect such party stance show that party for them is above the obligation towards the public to report on their work and to exchange their arguments with persons of different opinions. A logical continuation of such strategy is the recent call to the Agency for the Prevention of Corruption (ASK) to reexamine its decisions on the basis of anonymous submissions against members of the RTCG Council. In this way, the Government undertakes improper attempt to influence, now ASK, as an independent institution by the law. It is also possible that the goal of this alleged appeal is that ASK protects the remaining members of the RTCG Council against whom misdemeanor proceedings were also initiated but who now support the government positions.
Therefore, we call on the Government to unblock contracts with RTCG and that its top members, in accordance with their obligations to the public, expose their work to public criticism through appearances at the RTCG rather than continue harming the public interest by following the party stand.
Ana Novaković, Executive Director, Centre for Development of Non-Governmental Organizations (CDNGO) Daliborka Uljarević, Executive Director, Centre for Civic Education (CCE) Stevo Muk, President of MB, Institute alternative (IA) Zlatko Vujović, President of MB, Centre for Monitoring and Research (CEMI)
In addition to the specific equipment needed for the security of the state and citizens, purchase of ordinary computers and passenger cars also slipped through under the veil of secrets of procurement worth millions. In a significant number of cases, only one bidder participated in tender.
In the last five years (2013-2017), the Ministry of Interior (MoI) and the National Security Agency (NSA) spent more than eight million euro on confidential procurement.
In addition to the specific equipment needed for the security of the state and citizens, these two institutions slipped through under confidential procurement worth millions, purchase of ordinary computers, passenger cars and tires. In most cases there was no competition on tenders, as only one bidder participated in each tender.
The Ministry of Defence has not provide answers on the amount spent for confidential procurement by the publication of this research.
Despite the huge amount of money being secretly spent, the legal framework in Montenegro still does not provide for a unique approach in regulating this area. It is a source of possible problems and abuses that this area is increasingly regulated by by-laws and internal acts, which are often unavailable to the public.
Confidential procurement refer to procurement of goods, services and works, such as weapons, ammunition and other special equipment used for the protection and security of the state and citizens. According to data obtained from the NSA, in 2013, €289.947 was spent for this purpose, and slightly less in 2014 – €154.635. In 2015, the NSA spent €329,745 in this way. The value of public procurement of the Agency in 2016 was €445.784, and confidential ones – four times more, €1.953.086. The CIJ-MNE sources from security circles say that the NSA bought tracking and eavesdropping devices that year. The Agency has not submitted data on last year’s expenditure for confidential procurement.
Unlike the NSA, where expenditure for confidential procurement often exceeds the one for public procurement, in the Ministry of Interior it amounts to about four percent of the value of public procurement. The exception is 2015 when confidential procurement of the Ministry of Interior amounted to almost one and a half million euro. Several persons from security services confirmed to the CIJ-MNE that the AFIS system was purchased that year, aimed at preventing electoral misuses – checking the ID cards and determining based on fingerprints if there are duplicates or false identities. The largest amount spent on confidential procurement in the MoI, however, was recorded last year, €2.528.761.
In the system in which illegalities occur in the implementation of public tenders, the danger is even higher in confidential procurement, given that citizens’ money is being spent without public insight and with insufficient control.
“Apart from being confidential, these procurement are also public, because they are procured with public money – citizens’ money, but also because this is a public, state affair – concluding a contract for procurement between the state and private firms,” says Ana Đurnić, public policy research at Institute Alternative for CIJ-MNE.
She explains that the nature of confidential procurement is somewhere between public and secret: “On the one hand, there is a need for the public to know how this money is spent and whether it is well managed. However, there is also a need to protect information about these procurement due to security concerns. Still, every type of control by the interested public, citizens and civil society is very limited in this area. Even acts that regulate confidential procurement procedures are, as a rule, not available.”
In addition to having no insight into what is procured confidentially, public does not know which procedures are being used and whether they are implemented with respect to the general principles of competitiveness, equal treatment of all participants and non-discrimination prescribed by the EU directives regulating this area.
The Law on Public Procurement adopted in 2014, in the chapter Procurement in the area of defence and security, prescribed which procurement have security and defence features – procurement of military equipment, security-sensitive equipment, goods, services and works that are directly related to military and security sensitive equipment, services and works for military purposes and security-sensitive services and works. The Law also prescribed which procedures can be applied to these procurement, how to protect data regarding procedures, how to conclude contracts and implement contractual obligations, in which way to secure safety of goods and similar details.
However, with the Amendments to the Law on Public Procurement from June last year, regulation of security and defence procurement is reduced to two articles. One prescribes that the types of procedures and the manner of their implementation for the procurement of equipment, goods, services and works that are directly related to military and security-sensitive equipment, as well as services and works, shall be regulated by the Government’s regulation for all contracting authorities performing these procurement. These are the Ministry of Defence, the Ministry of Interior and the National Security Agency. The Government regulation has not yet been adopted, although the deadline of six months since the law came into force expired at the end of 2017.
The second article of this Law prescribes a very wide scope of exemptions from the application of the said Government regulation. This implies, inter alia, that bylaws will not be implemented if the estimated value of procurement is equal to or less than 20 thousand euro for goods and services or 40 thousand euro for works. The Law now prescribes that the exemptions will be regulated discretionarily – by the internal acts of the contracting authorities.
The Institute Alternative requested these documents through free access to information and received response from the Ministry of Internal Affairs that confidential procurement are implemented on the basis of the “Instructions on the manner of determining procurement needs and procedure for implementation of confidential procurement” from 2014, which was signed by the former Minister Raško Konjević. On purpose or by chance, they acknowledged that they are aware that this act is now incompatible with the Law on Public Procurement. Along with the data on the amount of confidential procurement, the Institute Alternative also received response of the Department for Finances, General and Supporting Affairs. It states: “Please find attached requested information for conducted confidential procurement, noting that they have not been performed in accordance with the positive legal regulations, and therefore I deem it should not be forwarded.” This nonconformity did not prevent the MoI from spending two and a half million euro on confidential procurement last year.
According to the Law on the National Security Agency, procedure for implementing these procurement is regulated discretionally by the act of the Director of the Agency. The Rulebook on the procedure for conducting confidential procurement in the NSA is classified as “INTERNAL”. This act was adopted on December 8, 2015, and its secrecy, according to the law, is valid for two years. At the end of December last year, the NSA refused access to this document to the Institute Alternative, although the classification time had expired.
Rare records on what is purchased through confidential procurement are provided in reports of the State Audit Institution (SAI) – drafted in 2011 and 2015 for NSA, and in 2008 and 2014 for the MoI. With the approval of the Government, the NSA purchased 11 cars in 2015, based on a two-year leasing agreement with a total value of €349.334. In addition, it bought computer equipment for €57.308 – desktop and laptop computers and printers. As the technical characteristics of cars are in accordance with the standards of high middle class passenger vehicles, the SAI determined that this, as well as purchased computer equipment, cannot have the treatment of special equipment. Therefore, it was not supposed to be purchased via confidential procurement, but in accordance with the Law on Public Procurement, as assessed by the SAI Audit report of the NSA for 2015.
Out of 20 confidential procurement procedures that were implemented, 13 were conducted on the basis of one received bid, according to the SAI information from the 2014 MoI audit report. That year, the MoI also purchased through confidential procurement procedures what is not defined as having special purpose, such as passenger vans and tires.
SAI Senator, PhD Branislav Radulović, who has been auditing the MoI, the NSA and the Ministry of Defense for the last 10 years, explains for the CIJ-MNE that “confidential procurement should be conducted in accordance with the special internal act of the contracting authority, which they are obliged to adopt in accordance with Article 116 b of the Law on Public Procurement”.
“Exactly the lack or incompleteness of these internal acts that specify the procedure for the implementation of confidential procurement and define what can be the object of confidential procurement, is the main problem in this area, which the SAI pointed to, among other things, in previous audits” said Radulović for the CIJ-MNE.
The NSA and the MoI authorities have not answered CIJ-MNE question as to whether auditor’s recommendations were fulfilled, and on the basis of which acts are confidential procurement being conducted now. The answer was only received from the Parliament’s Committee on Security and Defence. The letter signed by Obrad Mišo Stanišić, the chairman of the Committee, provides links from the sessions where SAI reports and final budgets of the Ministry of Defence, the MoI and the NSA were discussed. “The Committee was informed on the implementation of the NSA’s obligations based on the SAI recommendations in the Final Report, which the Committee deems as responsible and professional attitude towards them”, formulations such as this one from the report of December 2016 are common.
“In accordance with the Law on the Parliamentary Oversight of Security and Defence Sector, the Security and Defence Committee, since 2011 when the law came into force, regularly reviews all SAI reports on financial and other operations of bodies and institutions in the area of security and defence. So far, in all cases, the Committee supported all SAI recommendations with its conclusions and additionally obliged audit subjects to implement them,” stated Radulović.
The SAI announced that it will control this year how the MoI reacted to their recommendations.
The Army Buys and Denies It
In its replies to the CIJ-MNE, the Ministry of Defence claims that it does not conduct confidential procurement procedures as of May 2015, stating that the Decree on External Trade of Special Purpose Means, which prescribed these affairs, ceased to be valid at the time.
On the other hand, according to the findings of the SAI, in 2016, the Ministry of Defence carried out four procurement procedures, two of which related to security-sensitive equipment. The auditor points out that he could not review the procedure.
“The state auditor could not determine whether and in what way procurement to which the Law on Public Procurement does not apply (confidential procurement) are planned, and how are procedure and reporting on the procurement conducted, because there are no acts specifying this,” reads the auditor’s report released in June 2017.
In November 2015, following SAI recommendations, a meeting was held at the Ministry of the Internal Affairs, attended by representatives of the MoI, the Ministry of Defense and the Public Procurement Administration. It was concluded that the new Law on Public Procurement shall define concept, object and procedure of confidential procurement, and that until then a decree shall be adopted that would serve as basis for the implementation of the procurement procedure, and a working team shall be formed with the task of drafting the decree.
Obviously, the recommendation on adopting decree was not implemented. The Ministry of Defence stated for the CIJ-MNE that since May 2015 they do not implement their own “Plan on measures and activities for monitoring and implementing elimination of shortcomings established by the SAI audit”, in the part related to confidential procurement.
“At the beginning of December last year, we requested from this Ministry information on confidential procurement spending for the past five years and we still have not received it. Regarding the act regulating this area, for whose adoption deadline expired in December last year, they replied it is “in drafting procedure”. The whole system of confidential procurement is so closed that even basic data cannot be obtained. Such non-transparency allows for great abuses, and frequent amendments of laws and bylaws regulating this area greatly contribute to this. The Ministry of Defence has the responsibility to prepare a by-law and propose it to the Government for adoption not only for itself, but for other bodies that conduct confidential procurement, which makes this kind of acting and non-transparency even more worrisome,” says Ana Đurnić.
Predrag NIKOLIĆ
This article was produced within the project “Confidential Procurement – Out of Sight, Out of Mind”, implemented by Institute Alternative and Centre for Investigative Journalism and financed by the European Union within the project “Accountability, Technology and Institutional Openness Network in the South East Europe region – ACTION SEE”. The contents of the article are the sole responsibility of the authors and can in no way be taken to reflect the views of the donor.
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Institute Alternative has requested reports, records or official notes on the conducted controls of asset declarations for six public officials. However, the Agency rejected access to this information, stating that income and asset reports are published on its website, as well as information on the established breaches of the law.
She explains that the nature of confidential procurement is somewhere between public and secret: “On the one hand, there is a need for the public to know how this money is spent and whether it is well managed. However, there is also a need to protect information about these procurement due to security concerns. Still, every type of control by the interested public, citizens and civil society is very limited in this area. Even acts that regulate confidential procurement procedures are, as a rule, not available.”
