Month: April 2024

In the past period, there has been a lack of criminal accountability for corruption in public procurement. It is essential to strengthen the capacities of institutions for detecting and prosecuting corruption in this area, as specialised knowledge is needed to address this complex issue. People within the system need to be motivated to report suspicions of corruption.

These are some of the conclusions from our panel discussion “Corruption in Public Procurement – Why is There No Criminal Accountability?”. During the panel, data collected by Institute Alternative were presented, covering a period of seven and a half years and relating to the activities of the police, prosecution, and judiciary.

From 2016 to July 2023, the Police Administration (UP) handled 31 cases related to public procurement, but only submitted one criminal report to the prosecution – according to data collected by Institute Alternative. Dragana Jaćimović, a public policy researcher at Institute Alternative, stated that the data show that the efforts of institutions to prosecute corruption in public procurement are very limited.

“The Agency for Prevention of Corruption (ASK) has submitted five criminal reports. Three cases are ongoing, while two have been dismissed with the notification that no criminal offense was committed,” Jaćimović emphasised.

According to the data from the Supreme State Prosecutor’s Office, based on ASK’s reports, seven cases have been formed, with five under the jurisdiction of the Special State Prosecutor’s Office (SDT) and one each at the Basic State Prosecutor’s Offices in Podgorica and Herceg Novi.

On the other hand, according to media reports, three criminal reports have been submitted to the SDT by other reporters, while one case was initiated by the SDT on its own initiative concerning the procurement of the ferry “Prizna.” The SDT has dismissed two criminal reports.

Two acquittals have been delivered in cases related to public procurement. The Basic Court in Podgorica issued one acquittal for a procurement from 2013 – abuse of official position in an attempt, and dismissed the case against the former mayor of Nikšić where it was determined that there was no evidence of abuse of official position – according to data collected by Institute Alternative.

Jaćimović highlighted that during the specified period in Montenegro, over 3.5 billion euros were contracted through public procurement.

“Although public procurement is a high-risk area for corruption, the data we have show a lack of criminal accountability for corruption in public procurement,” concluded Jaćimović.

She noted that since December 2023, Montenegrin legislation includes the criminal offense of abuse related to public procurement.

“However, since the introduction of the new criminal offense, the police have handled two cases but have not filed criminal reports, while the Supreme State Prosecutor’s Office records show no data on criminal reports related to the new criminal offense,” said Jaćimović, adding that training for the new criminal offense is not planned by the Training Center for the Judiciary and State Prosecutors for this year.

Vučina Keković, the Chief Police Inspector in the Sector for the Fight Against Crime at the Police Administration (UP), said that a major problem is the lack of personnel.

“In the Department for Combating Corruption, Economic Crime, and Conducting Financial Investigations, there are 60 positions, of which less than 50 percent are filled. A major problem is that a large number of colleagues will retire in the next two years. In the past period, there was a wrong personnel policy, and currently, there is no staff for economic crime. This is an issue that needs to be resolved. These are the basic problems for detecting corruption, not only in public procurement but also in all other sectors,” explained Keković.

Keković believes that corruption in public procurement is a highly provable offense if investigated before the tender is realised. “In the area of public procurement, I worked directly on two cases and must say that neither case was realised. We have a clear picture that everything was rigged, but we had no mechanism to prove the specific criminal offense. With these capacities, we are very limited,” added Keković.

“We need to prove corrupt actions, and this can be proven during the tender process if we have the staffing capacities and a sufficient number of quality inspectors. We are open to direct communication, and if any citizens, institutions, NGOs, or media have information, they should report and share it with us as soon as it is known. We cannot function without joint work with the Tax Administration and the Customs and Revenue Administration. There would be more results if that cooperation were stronger, especially in the area of tax evasion and public procurement,” concluded Keković.

State Prosecutor at the Special State Prosecutor’s Office (SDT) Vukas Radonjić stated that the SDT is responsible for prosecuting public officials or, in cases of organised crime, and that all other cases fall under the jurisdiction of the basic state prosecutor’s offices.

“Criminal offenses related to public procurement are such that it is difficult for the state prosecutor to prosecute them ex officio. If the authorities that should control the process (Inspection Administration, Commission for Protection of Rights in Public Procurement Procedures) do not reveal questionable actions to us, it is hard to expect the prosecutor’s office to get involved unless citizens or media uncover corrupt activities,” said Radonjić.

“We need people who are familiar with public procurement procedures, which also involves cooperation with other bodies in Montenegro and abroad. We must establish teams at the national and international levels. We need to set a different standard of proof. Simply put, in corruption cases, we must broaden the standard of proof,” emphasised the state prosecutor.

Regarding acquittals, he mentioned that one reason making confirmation difficult is that it is still hard to prove corruption in public procurement and due to the way courts assess evidence. “The police and inspection authorities must play a significant role in detecting corrupt actions. We cannot expect better results until public awareness of the seriousness of these criminal offenses is raised,” Radonjić concluded.

Jelena Jovetić, Director General of the Directorate for Public Investment Management and Public Procurement Policy at the Ministry of Finance (MF), stated that for 2023, there are over 630 million euros in public procurement and that efforts are being made to reduce the space for corruption through the introduction of European standards.

“The data are complex, making it difficult to implement control mechanisms. From the MF’s perspective, it is important to implement public procurement effectively. There is a preparatory phase, the tender, and contract conclusion. We unevenly devote attention to these phases. I point out that there is limited investment in personnel dealing with public procurement. You have one official handling public procurement and a number of controllers,” emphasised Jovetić.

She added that from the Ministry of Finance’s perspective, they appreciate that the new criminal offense of abuse in public procurement has been recognised. “It is crucial to clarify that if tender documentation is not adequately completed, it is not a criminal offense, but an infraction subject to an appeal procedure. This criminal offense is more oriented towards economic entities, sending the message that misuse of public procurement can be controlled,” she noted.

She particularly highlighted the usefulness of the electronic public procurement system where all data are published. “These data can be accessed by both the police and the prosecutor’s office. It is important to believe that the public is the best controller. If we consider public procurement to be procedurally correct and free of corrupt activities, any action taken afterward is a delayed response,” concluded Jovetić.

Stevo Muk, President of the Managing Board of Institute Alternative, pointed out that specialised knowledge is needed to deal with this complex issue and that people within the system need to be motivated to report suspicions of corruption.

“What is much more important than the preparatory actions in tenders is the contract execution phase, where we have huge problems and where corruption is realised through non-execution, partial execution, or execution contrary to standards. In that phase, we should have all the possibilities that we lack in the previous ones: written evidence of execution, in the form required for some economic forensic examination, and what should be confirmed by the procurement implementation report,” added Muk.

This panel was organised within the Project “Procurement under spotlight – Making Watchdogs Work!”, with the support of the Embassy of the Kingdom of the Netherlands in Serbia and Montenegro within the MATRA Rule of Law programme. Project aims to empower and motivate watchdogs to combat corruption and undue influence in public procurement.

We call on the Ministry of Culture and Media to ensure, through the new Law on RTCG, that the appointment of new members of the RTCG Council takes place immediately after the expected rapid adoption in the Parliament of Montenegro, and the Parliament to halt the ongoing process of appointing two members of the RTCG Council under the current law.

Considering the escalation of controversies within RTCG, largely contributed by the current composition of the RTCG Council through disregard for court decisions, we believe it is the responsibility of the Ministry of Culture and Media, as well as the Parliament of Montenegro, to contribute to the urgent resolution of this situation within their respective authorities.

The latest version of the draft Law on RTCG (Law on the National Public Broadcaster – Public Media Service of Montenegro) sets clear criteria for the selection of RTCG Council members, requiring a level VII-1 of professional qualification and 10 years of work experience, while for the general director, a level VII-1 of professional qualification and a minimum of 10 years of experience are required. Additionally, the draft Law on RTCG foresees an increase in the number of RTCG Council members from the current 9 to 11. Furthermore, the draft Law outlines a procedure for the selection of RTCG Council members that limits the inappropriate influence of political parties on the selection process by ensuring that representatives of NGOs in this body are not elected by members of the Parliament’s Administrative Committee but rather by the NGOs that must meet rigorous criteria to demonstrate their activity. These provisions, along with the tightening of criteria for the selection of RTCG Council members, should lead to greater independence of the RTCG Council and consequently greater autonomy of the RTCG management.

The Ministry envisages a three-year delay in the implementation of the law to allow the current Council and management of RTCG to complete their mandate. This demonstrates the Ministry’s inappropriate dismissive attitude towards pressing issues and consciously undermines the necessary changes that should be induced by new media laws.

The current Council was elected through a procedure that allowed strong political influence through the Parliament of Montenegro’s Administrative Committee, which, according to their political preferences, selected representatives of NGOs, who constitute 4 out of 9 Council members. Such a Council twice illegally appointed the Director-Genera of RTCG twice, as confirmed by court judgments and the decision of the Agency for Prevention of Corruption (APC).

The Parliament is currently conducting the procedure for the election of two Council members for a new term, although it is clear that the new legal text must be swiftly adopted for Montenegro to receive the IBAR in June, and one of the two candidates participated in the double illegal appointment of Raonić.

We remind that the process of amending media laws has been ongoing for almost 30 months, and that the key requirements of the European Union and the Council of Europe are to increase the autonomy of the governing bodies of RTCG and the Agency for Electronic Media (AEM). These are obligations of the state of Montenegro in the EU accession process. The final adoption of these legal texts is expected in the next month.

We believe there is no valid argument to delay the election of all governance structures of RTCG for three years, as this is the only way to create conditions for this institution to free itself from political parties’ influence and professionalize into a genuine public service.

Violating the law and disregard for court rulings in RTCG cannot contribute to the position of the Government, which claims to be committed to European integration and the rule of law.Therefore, we call on the Ministry of Culture and Media to consider this demand from the civil sector and to include in the provisions in the final version of the draft Law on RTCG that enable the implementation of the law immediately after its adoption, and for the Parliament of Montenegro to suspend the current procedure and elect all new Council members according to the new legal solution.

Media Centre, Goran Đurović
Centre for Civic Education (CCE/CGO), Daliborka Uljarević
NGO Prima, Aida Perović
Montenegrin PEN Centre, Milan Marković
Association SPEKTRA, Jovan Ulićević
Centre for Investigative Journalism CIN-CG, Milka Tadić Mijović
Centre for Monitoring and Research (CeMI), Zlatko Vujović
Alliance for Equal Rights of LGBTI Persons ERA, Danijel Kalezić
Montenegrin Women’s Lobby, Aida Petrović
Association of Youth with Disabilities (UMHCG), Marina Vujačić
Montenegrin LGBTIQ Association Queer Montenegro, Staša Baštrica
NGO Juventas, Ivana Vujović
Association of Montenegrin Publishers, Vladimir Vojinović
Trade Union of Media of Montenegro (SMCG), Radomir Kračković
Women Rights Centre (WRC), Maja Raičević
Institute Alternative, Stevo Muk
Centre for Development of non-governmental organisations (CRNVO), Zorana Marković

Members of The Europe Now! Movement (PES), Vasilije Čarapić and Darko Dragović, have proposed an amendment to the Law on Pension and Disability Insurance to create an exception to retirement conditions in favour of judges of the Constitutional Court. Adoption of the proposal would extend the mandate of the current President of the Constitutional Court, Milorad Gogić and Judge Budimir Šćepanović, whose terms under the current law expire in May. Additionally, it would affect Judges Dragana Đuranović and Desanka Lopičić, whose functions are supposed to end by the end of this year.

Milorad Gogić and Desanka Lopičić have been judges of the Constitutional Court since 2005, Budimir Šćepanović since 2013, and Dragana Đuranović since February 2023.

The undersigned non-governmental organisations strongly oppose the proposed amendment to the law, considering it an inappropriate influence of the executive branch on the Constitutional Court. We believe that adopting the proposed legislative change and extending the mandates of current judges would unnecessarily jeopardise the integrity of the Constitutional Court, which must uphold the rule of law rather than the interests of the executive.

If the government’s true objective had been a principled consideration of the optimal retirement age, this issue would not solely concern Constitutional Court judges but all judges who are in the same legal situation due to the wording of the Constitution. It would not be hastily initiated by the deputies without public debate, an action evidently aimed at preventing imminent expiration of mandates for current Constitutional Court judges.

We believe that the issue of the termination of judicial functions should be opened and resolved on a principled basis for all, in a manner that does not compromise the integrity of the Constitutional Court.

Below are more detailed reasons against the proposal of the said MPs:

1) Hasty changes to the law aimed at extending the mandates of current Constitutional Court judges would only confirm suspicions of political influence on four judges of the court who meet retirement conditions this year under the existing Law on Pension and Disability Insurance. Amending the law would prioritise subjective interests of these four judges over the broader public interest for impartial and objective Constitutional Court.

2) The selection procedure for a judge to replace the outgoing President of the Constitutional Court has been duly initiated and is pending. Six candidates have applied for the position, and there should not be any obstacles to filling the vacancy on time. However, it is also true that the competent Constitutional Committee, led by Simonida Kordić (NSD), has failed to determine whether the applicants meet the requirements and to invite them for an interview during the last month, likely due to the same agenda to extend mandates of the existing judges.

Additionally, the competition to appoint a judge to succeed Judge Šćepanović, who turns 65 on May 31st and thus meets the retirement criteria, has not yet been announced. This is another indication that there is at least an expectation from the Constitutional Court, if not an agreement, for the executive branch to accommodate them and allow for the extension of mandates for all. However, if this competition were announced immediately, it would be possible to timely fill both judicial positions.

3) The proposal is discriminatory towards judges of regular courts, whose functions also need to cease at the age of 65 or after 40 years of service. It also discriminates against other Constitutional Court judges whose functions recently ended for the same reason, and who have been concurrently serving for many years with the current President of the Constitutional Court, Milorad Gogić, Judge Lopičić, and Judge Šćepanović.

Gogić has already met the criteria for the end of his term in accordance with recent amendments to the Law on Pension and Disability Insurance. The retirement age has been standardised for both men and women at 65 years, and he reached that age last year. Despite remaining in office under the previous conditions, the executive branch now proposes additional amendments to prolong his tenure. How can we trust that such favours are not to be returned in the future?!

Judge Đuranović has also fulfilled the requirements for the cessation of her functions, as indicated by her biography, having completed 40 years of service during the past year, provided that her work experience has been continuous. Furthermore, she will turn 65 in December of this year, thereby fulfilling that criterion as well. Similarly, Judge Lopičić, according to her biography, will complete 40 years of service during this year, if her work experience has been uninterrupted, thus meeting the requirement for retirement or the cessation of functions.

4) The constitutionality of this amendment to the law would be decided by the same judges of the Constitutional Court (four out of seven) whose mandates would be extended by the legislative change. These judges should be deemed biased and should be exempt from deciding in their own case. However, since there are no replacements for them, and as a result, there would be a lack of quorum to make such a decision, the effective functioning of the Constitutional Court would again be hindered, thereby jeopardising the rule of law. This is certainly too high a price to pay for extending mandates of several individuals.

5) There is a worrying trend of passing ad hominem laws through which political parties on power resolve individual cases, sometimes shortening mandates, sometimes appointing favoured candidates, and now attempting to extend mandates of judges who are supposed to decide on their legislative solutions.

6) The executive branch seems to forget that the essence of negotiations with the European Union is for Montenegro to demonstrate that it has institutions capable of upholding the rule of law, not serving the interests of the ruling parties. The Constitutional Court, as the last bastion of the rule of law, should be beyond reproach. The fact that the executive branch is willing to compromise its integrity in this manner, at all costs, hinders the European path of our country.

Human Rights Action (HRA)
Association Spectra
Center for democratic transition (CDT)
Centre for Civic Education (CCE)
The Center for Civic Freedoms (CEGAS)
Center for Investigative Journalism of Montenegro (CIN-CG)
Centre for Monitoring and Research (CEMI)
Centre for the Development of Non-Governmental Organisations (CRNVO)
Women’s Rights Centre (CŽP)
LGBTI Equal Rights Association for Western Balkans and Turkey (ERA)
Institute Alternative (IA)
Media Institute Montenegro (IMCG)
Juventas
Network for affirmation of NGO sector (MANS)
Women’s Safe House
The Association of Youth with Disabilities of Montenegro (UMHCG)